Queen v. Secretary, Florida Department of Corrections (Columbia County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JESSIE DUANE QUEEN,

Petitioner,

vs. Case No. 3:19-cv-1477-HLA-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

Respondent.

/

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this

action by filing a pro se Petition for Writ of Habeas Corpus Under 28

U.S.C. § 2254. (Doc. 1, Petition.) He is serving two consecutive terms of

15 years in prison for the sale of a controlled substance (cocaine) and the

possession of a controlled substance with intent to sell or deliver.

Petitioner challenges his convictions and sentence based on the

ineffective assistance of counsel. Respondents oppose the Petition,

arguing that the first four grounds do not merit relief under AEDPA’s1

1 The Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, 110 Stat.

1214 (1996).

deferential standard of review and that Grounds Five and Six are

unexhausted and procedurally defaulted. (Doc. 7, Answer.) Petitioner

replied. (Doc. 12, Reply.) Thus, the matter is ripe for a decision.

II. Background

In May 2011, a multijurisdictional task force in Columbia County,

Florida, used a paid confidential informant (“C.I.”) to conduct controlled

drug buys, which were recorded by audio-video equipment placed on the

C.I. During one operation, the C.I. purchased $40 worth of cocaine from

Petitioner, which was captured by an audio-video device and was

witnessed by a task force officer supervising the controlled purchase. (See

Resp. Ex. B4 at 141–49, 155, 160–61; Resp. Ex. B5 at 260–62.)

The State of Florida charged Petitioner by information in the Third

Judicial Circuit Court with one count of the sale or delivery of a controlled

substance (Count One) and one count of the possession with intent to sell

or deliver a controlled substance (Count Two). (Resp. Ex. B1 at 165.) In

April 2014, Petitioner went to trial represented by a court-appointed

attorney, Travis Koon, and a jury found him guilty of both counts. (Resp.

Ex. B2 at 202.) The trial court sentenced Petitioner to consecutive terms

of 15 years in prison. (Id. at 270–77.) Petitioner appealed, represented by

the Public Defender’s Office for the Second Judicial Circuit. (Resp. Exs.

B9, B11.) The First District Court of Appeal (“DCA”) per curiam affirmed

Petitioner’s convictions and sentences on August 4, 2016. Queen v. State,

197 So. 3d 47 (Fla. 1st DCA 2016); (Resp. Ex. B12.)

Petitioner filed a pro se petition for writ of habeas corpus in the

First DCA, raising one claim that trial counsel had a conflict of interest,

one claim of ineffective assistance of appellate counsel, and one claim of

trial court error. (Resp. Ex. D1.) In a per curiam opinion, the First DCA

denied the ineffective-assistance-of-appellate-counsel claim “on the

merits.” Queen v. State, 226 So. 3d 820, 820 (Fla. 1st DCA 2017); (Resp.

Ex. D2). Petitioner then moved for post-conviction relief in the trial court

under Florida Rule of Criminal Procedure 3.850, initially raising four

grounds for relief. (Resp. Ex. E1 at 11–29.) The trial court determined

that grounds two, three, and four were insufficiently pled and dismissed

the Rule 3.850 Motion with leave to amend under Rule 3.850(f)(3). (Resp.

Ex. E1 at 37.) Petitioner then filed an Amended Rule 3.850 Motion, in

which he repleaded grounds two through four and added a fifth ground.

(Resp. Ex. E1 at 48–70.) Between the original Rule 3.850 Motion and the

Amended Rule 3.850 Motion, Petitioner raised five claims for relief,

asserting the ineffective assistance of trial counsel and cumulative error.2

The trial court denied the Amended Rule 3.850 Motion without an

evidentiary hearing (id. at 73–87), and the First DCA per curiam

affirmed, Queen v. State, 282 So. 3d 61 (Fla. 1st DCA 2019); (Resp. Ex.

E4). These federal habeas proceedings followed.

III. 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

2 Petitioner claimed that trial counsel was ineffective because (1) he failed to

provide case law to support his closing argument, (2) he failed to move to withdraw

due to a conflict of interest or to request a so-called “Nelson hearing,” (3) he failed to

object to a copy of an audio-video recording, which was entered into evidence, being

allowed into the jury deliberation room, (4) he failed to move to disqualify the trial

judge for alleged bias, and (5) the cumulative effect of counsel’s errors prejudiced him.

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,

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

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.”).

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-

366; 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,[3] supra, at 747-48;

Sykes,[4] supra, at 84-85. 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, 111 S. Ct. 2546.

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

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

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

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 Carrier,

477 U.S. at 488, 106 S. Ct. 2639).[5] Under the prejudice prong, [a

petitioner] must show that “the errors at trial actually and

substantially disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier, 477 U.S. at

494, 106 S. Ct. 2639).

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

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

receive consideration on the merits of a procedurally defaulted claim if

the petitioner can establish that a fundamental miscarriage of justice,

the continued incarceration of one who is actually innocent, otherwise

would result. The Eleventh Circuit has explained:

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

yet another avenue for him to receive consideration on the merits

of his procedurally defaulted claim. “[I]n an extraordinary case,

where a constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal habeas court

may grant the writ even in the absence of a showing of cause for

the procedural default.” Carrier, 477 U.S. at 496, 106 S. Ct. at

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

2649. “This exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

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

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

convicted him’ of the underlying offense.” Johnson v. Alabama, 256 F.3d

1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327

(1995)). Additionally, “‘[t]o be credible,’ a claim of actual innocence must

be based on reliable evidence not presented at trial.” Calderon v.

Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324).

With the rarity of such evidence, in most cases, allegations of actual

innocence are ultimately summarily rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’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 v. Hall, 592 F.3d 1144, 1163

(11th Cir. 2010). 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).

IV. Analysis

A. Ground One

Petitioner alleges he was denied his Sixth Amendment right to the

effective assistance of counsel because his trial attorney, Travis Koon,

failed to provide the trial court relevant case law to support his proposed

closing argument. (Doc. 1 at 5–7.) For closing argument, Mr. Koon

wanted to describe different burdens of proof to the jury, presumably to

contrast them with the proof-beyond-a-reasonable-doubt standard. The

trial court would not allow it unless Mr. Koon submitted case law

supporting his ability to discuss other burdens of proof in closing

argument, which he did not provide. (See id. at 5–6.) Instead, Mr. Koon

provided case law relating to the discussion of burdens of proof during

the voir dire process. (Id.) Petitioner claims he was prejudiced because

Mr. Koon’s failure to provide the case law left him without an appropriate

closing argument.

Petitioner raised this claim as ground one in his Rule 3.850 Motion.

(Resp. Ex. E1 at 15–17.) The trial court identified Strickland as the

governing standard (id. at 74–75) and summarily denied the claim,

writing:

In Ground 1, the Defendant urges that Counsel was

ineffective for failing to present case law to support his argument

for discussing certain legal concepts during closing argument. The

Defendant asserts that Counsel’s deficient performance prejudiced

the defense because the Defendant was deprived of an appropriate

final argument to support the defense.

During the charge conference, Counsel told the Court that

he planned to discuss the different burdens of proof during his

closing argument. See attached Jury Trial Transcript at 349-350.

Counsel had tried to do this in the Defendant’s previous trial but

had been prohibited by the Court because the legal concepts were

irrelevant and would only serve to confuse the jury. See attached

Jury Trial Transcript at 350-351. The Defendant told the Court

that he now had case law that permitted discussion of these legal

concepts during closing argument. See attached Jury Trial

Transcript at 350. Because the case law provided by Counsel dealt

with voir dire rather than closing arguments, the Court

determined that case law did not permit Counsel to discuss these

irrelevant legal concepts during closing argument. See attached

Jury Trial Transcript at 352-353. When given additional time to

find case law regarding the issue of arguing to the jury about

different burdens of proof in different proceedings, Counsel replied

he was unable to find any case law. See attached Jury Trial

Transcript at 357.

As far as this Court can discern, there is no Florida case law

that would have permitted Counsel to discuss irrelevant legal

concepts in closing argument on law not applicable to the case. It

is entirely appropriate for an attorney to discuss applicable law

during closing argument. Taylor v. State, 330 So. 2d 91, 93 (Fla.

1st DCA 1976) (emphasis added). However, “the purpose of closing

argument is disserved when comment upon irrelevant matters is

permitted.” Haliburton v. State, 561 So. 2d 248, 250 (Fla. 1990)

(citations omitted). The matters Counsel wished to discuss in

closing argument were clearly unrelated to the case before the jury

and could not have been applied to the facts of the case.

Explanation of those legal concepts would have only served to

confuse the jury.

Florida case law does not support Counsel’s argument for

discussing irrelevant legal concepts during closing argument.

Thus, Counsel is not deficient for failing to provide this non-

existent case law as support for his argument. The Defendant has

failed to show that Counsel’s performance was deficient.

Accordingly, Ground 1 is denied.

(Resp. Ex. E1 at 75–76.)

Petitioner appealed the denial of this claim. (Resp. Ex. E2.) The

First DCA affirmed the trial court’s ruling without a written opinion.

Queen, 282 So. 3d 61; (Resp. Ex. E4). The First DCA’s decision is due

deference under AEDPA, but because it did not explain its decision, this

Court “looks through” to the trial court’s written opinion to understand

the First DCA’s reasoning. Wilson, 138 S. Ct. at 1192.

The First DCA’s rejection of this claim was not contrary to or based

on an unreasonable application of clearly established federal law, 28

U.S.C. § 2254(d)(1), nor was it based on an unreasonable determination

of the facts, § 2254(d)(2). The trial court explained that under Florida

law, an attorney may not discuss legal concepts or burdens of proof

inapplicable to the case at hand in closing argument, since doing so would

only confuse the jury. The trial court therefore reasoned that Mr. Koon

could not have been ineffective for not furnishing non-existent case law

to support his proposal to discuss different burdens of proof in closing

remarks. “[A]lthough the issue of ineffective assistance—even when

based on the failure of counsel to raise a state law claim—is one of

constitutional dimension, we must defer to the state’s construction of its

own law when the validity of the claim that … counsel failed to

raise turns on state law.” Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295

(11th Cir. 2017) (quotation marks and citation omitted). Thus, this Court

must defer to the trial court’s finding (and by extension, the First DCA’s

finding) that state law precluded trial counsel from discussing

inapplicable burdens of proof in closing argument, such that trial counsel

did not perform deficiently. Moreover, Mr. Koon delivered a reasonable

closing argument, which asserted that the C.I. was biased and unreliable

because he made his living as a paid informant, that the video recording

of the controlled purchase may have been incomplete, and asked the jury

to carefully weigh the evidence under the proof-beyond-a-reasonable-

doubt standard. (Resp. Ex. B5 at 362–69.) And, even if the First DCA’s

decision were not due AEDPA deference, Petitioner fails to show a

reasonable probability that the outcome of trial would have been different

had his attorney been able to discuss different burdens of proof in closing

argument. See Strickland, 466 U.S. at 695. Petitioner is therefore not

entitled to relief on this ground.

B. Ground Two

Petitioner alleges that Mr. Koon gave ineffective assistance because

he did not move to withdraw as counsel or request that the trial court

hold a so-called Nelson6 hearing to advise Petitioner about a purported

conflict of interest. (Doc. 1 at 7–10.) According to Petitioner, his trial

attorney, Mr. Koon, was removed from the case when he worked at the

state public defender’s office because of a conflict of interest, and Mr.

Koon gave ineffective assistance by continuing to represent Petitioner

despite that fact. (See id. at 7.) Petitioner states that the Florida Bar

advised the public defender’s office not to disclose the nature of the

conflict of interest. (Id. at 7 n.3.) Petitioner argues that (1) “the court

erred in failing to conduct a hearing or some type of meaningful inquiry

on the potential ethical conflict” and (2) trial counsel was ineffective

6 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).

because counsel “fail[ed] to withdraw and [did] not disclose the

circumstances surrounding the conflict.” (Id. at 7.)7

That said, Petitioner offers a timeline of events that contradicts his

allegation that Mr. Koon was removed from the case because of a conflict

of interest. (Id. at 8–9.) According to Petitioner, he was initially

represented by Mr. Koon, then of the public defender’s office, but Mr.

Koon turned his cases over to another public defender—Young Kwan—

because Mr. Koon was leaving for private practice (not because Mr. Koon

had any conflict of interest). After Mr. Koon turned the case over to Mr.

Kwan, the public defender’s office withdrew, and the Florida Bar

instructed the public defender’s office not to disclose the nature of the

conflict of interest. A few days after that, the Office of Criminal Conflict

and Civil Regional Counsel also moved to withdraw from representing

Petitioner due to a conflict of interest. Then, Mr. Koon, who was now in

private practice, was appointed to represent Petitioner as conflict-free

counsel and represented Petitioner at trial.

7 Although its relevance to his claim is unclear, Petitioner also mentions,

without elaboration, that Mr. Koon had an adversarial relationship with the judge,

the Hon. Leandra Johnson (see id. at 9) and that he was never told why Judge

Johnson later recused herself (id. at 10).

Thus, according to Petitioner’s own allegations, the public

defender’s office did not withdraw due to a conflict of interest until after

Mr. Koon had turned his cases over to Mr. Kwan and left the office. Even

so, Petitioner assumes that the conflict of interest affecting the public

defender’s office also affected Mr. Koon. Petitioner does not describe the

conflict of interest, but he appears to believe that the conflict continued

to exist after Mr. Koon was appointed as private “conflict-free” counsel.

Petitioner raised substantially the same claim as ground two of his

Amended Rule 3.850 Motion. (Resp. Ex. E1 at 51–58.) The trial court

summarily denied the claim, writing:

In Ground 2, the Defendant argues that Counsel (Travis

Koon) was ineffective for failing to file a motion to withdraw as

counsel or seek a Nelson hearing. The Defendant alleges that

Counsel had a legal and ethical duty to withdraw from the case,

or, at the least, to request a Nelson hearing. The Defendant states

that he is not fully apprised of the extent of the prejudice, but that

it cannot be said with certainty that the conflict of interest did not

affect the judgment and sentence.

Mr. Koon originally represented the Defendant in this

matter as an assistant public defender, but ceased representing

the Defendant when he entered private practice. Mr. Koon was

replaced by Mr. Nemecek from the Public Defender’s Office, but

subsequently Mr. Nemecek was replaced by Mr. Kwon, also from

the Public Defender’s Office. When Mr. Kwon withdrew for

unknown reasons, the Office of Criminal Conflict & Civil Regional

Counsel was appointed. That Office filed a motion to withdraw,

citing a conflict of interest. Upon the motion being granted, Mr.

Koon, then in private practice but on the Third Judicial Circuit

Attorney Registry for appointment as conflict counsel, was

appointed to represent the Defendant. The Defendant claims that

since Mr. Koon previously worked for the Public Defender’s Office

and the Office ultimately conflicted out from representing the

Defendant, Mr. Koon should have also been conflicted out.

The Defendant fails to allege a material prejudice that

resulted from the alleged conflict. The Florida Supreme Court has

explained:

In order to establish an ineffectiveness claim premised

on an alleged conflict of interest[,] the defendant must

“establish that an actual conflict of interest adversely

affected his lawyer’s performance.” Cuyler, 446 U.S. at

350, 100 S. Ct. 1708[8]; see also Quince v. State, 732 So.

2d 1059, 1065 (Fla. 1999)…. To demonstrate an actual

conflict, the defendant must identify specific evidence

in the record that suggests that his or her interests

were compromised. See Herring v. State, 730 So. 2d

1264, 1267 (Fla. 1998).

Hunter v. State, 817 So. 2d 786, 791–92 (Fla. 2002). The Defendant

has not pled any facts demonstrating that an actual prejudice

resulted from Counsel’s failure to withdraw or seek a Nelson

hearing. This Court has already granted the Defendant leave to

amend his motion in accordance with Rule 3.850(f)(3). As the claim

is still insufficient, it must be denied. Fla. R. Crim. P. 3.850(f)(3).

(Resp. Ex. E1 at 76–77.)

Petitioner appealed the denial of this claim. (Resp. Ex. E2.) The

First DCA affirmed the trial court’s ruling without a written opinion.

Queen, 282 So. 3d 61; (Resp. Ex. E4). The First DCA’s decision is due

deference under AEDPA, but because it did not explain its decision, this

8 Cuyler v. Sullivan, 446 U.S. 335 (1980).

Court “looks through” to the trial court’s written opinion to understand

the First DCA’s reasoning. Wilson, 138 S. Ct. at 1192.

“To establish a violation of the defendant’s Sixth Amendment right

to counsel based on a conflict of interest, a defendant must demonstrate:

(a) that his defense attorney had an actual conflict of interest, and (b)

that this conflict adversely affected his attorney’s performance.” Tuomi

v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 796 (11th Cir. 2020) (quotation

marks and citation omitted), cert. denied sub nom. Tuomi v. Inch, 141 S.

Ct. 1721 (2021). “The ‘mere possibility of [a] conflict of interest does not

rise to the level of a Sixth Amendment violation.’” Id. (quoting Buenoano

v. Singletary, 74 F.3d 1078, 1086 (11th Cir. 1996)).

To show an actual conflict of interest, a habeas petitioner must

make a factual showing of inconsistent interests and must

demonstrate that the attorney made a choice between possible

alternative courses of action that favors an interest in competition

with that of the defendant. If counsel did not make such a choice,

the conflict remained hypothetical.

Id. (cleaned up; internal quotation marks and citation omitted). “To

prove adverse effect, a habeas corpus petitioner must show: (1) the

existence of a plausible alternative defense strategy or tactic that might

have been pursued; (2) that the alternative strategy or tactic was

reasonable under the facts; and (3) a link between the actual conflict and

the decision to forgo the alternative strategy of defense.” Id. (quoting

Pegg v. United States, 253 F.3d 1274, 1278 (11th Cir. 2001)).

The First DCA’s rejection of Petitioner’s claim was not contrary to

or based on an unreasonable application of clearly established federal

law, 28 U.S.C. § 2254(d)(1), nor was it based on an unreasonable

determination of the facts, § 2254(d)(2). The Court assumes there was a

conflict of interest between Petitioner and the public defender’s office and

the Office of Criminal Conflict and Civil Regional Counsel. But there is

no evidence that these conflicts arose while Mr. Koon was with the public

defender’s office, or that they had anything to do with Mr. Koon at all.

Petitioner fails to identify an actual, rather than hypothetical, conflict of

interest between himself and Mr. Koon. Nor does Petitioner identify how

any conflict “adversely affected [Mr. Koon’s] performance.” Tuomi, 980

F.3d at 796. Thus, Petitioner fails to show that Mr. Koon had an actual

conflict of interest, that he was ineffective for not requesting a Nelson

hearing to resolve a hypothetical conflict of interest, or that the trial court

erred by not holding a Nelson hearing. Relief on this claim will be denied.

C. Ground Three

At Petitioner’s trial, the State introduced an audio-video recording

of the controlled drug buy between Petitioner and the C.I. (Resp. Ex. B4

at 155), which was played for the jury (id. at 215–17). The video, State’s

Exhibit 1, was redacted to exclude another drug buy conducted later in

the day by the same C.I., where the C.I. returned to the same location

and purchased drugs from a different individual. (See id. at 218–28, 232–

33.) Petitioner’s counsel, Mr. Koon, asserted that the video was

incomplete because it did not show the police searching the C.I. following

the alleged transaction with Petitioner and did not show the C.I.

returning to the location later on to buy drugs from another individual.

(Resp. Ex. B4 at 218; Resp. Ex. B5 at 362–69 (closing argument).) Mr.

Koon suggested that the other individual in the audio-video recording

was the actual source of the cocaine in Petitioner’s case.

Petitioner alleges that trial counsel, Mr. Koon, gave ineffective

assistance by failing to object to the trial court’s admission of the redacted

video tape and allowing its submission the to the jury. (Doc. 1 at 11–12.)

As Petitioner puts it, the video contained “other arguabl[y] relevant

transactions with the Petitioner.” (Id. at 11.) “This additional transaction

was redacted [so that] only the incriminating portion of the video was

allowed to be viewed by the jury.” (Id.). Petitioner says that counsel could

have, but failed to, object to the video being brought into the jury

deliberation room. (Id.) Petitioner alleges that counsel’s failure to object

to the videotape being taken into the jury deliberation room (1) failed to

preserve an objection to the videotape’s admissibility and (2) created a

“real danger” that “statements [in the videotape] will be unfairly given

more emphasis than other testimony.” (Id.)

Petitioner raised substantially the same claim as ground three in

his Amended Rule 3.850 Motion. (Resp. Ex. E1 at 58–61.) The trial court

identified Strickland as the governing standard (id. at 74–75) and

summarily denied the claim, writing:

In Ground 3, the Defendant alleges that Counsel is

ineffective for failing to object to the jury’s access to a redacted

video tape. The Defendant contends that “[i]t is not certain that a

conviction could not [sic] have been obtained without this violation

of due process.” Motion at 13.

Like in Ground 2, the Defendant has failed to allege a

material prejudice that resulted from Counsel’s alleged error. The

Defendant simply alleges that it is “not certain” the jury would still

convict the Defendant if they had not had access to the video tape.

Mere speculation that counsel’s error affected the outcome of the

proceeding is insufficient. State v. Dickson, 89 So. 3d 277, 279 (Fla.

1st DCA 2012) (citing Strickland v. Washington, 466 U.S. 668, 693

(1984)). This Court has already granted the Defendant leave to

amend his motion in accordance with rule 3.850(f)(3). As the claim

is still insufficient, it must be denied. Fla. R. Crim. P. 3.850(f)(3).

(Id. at 77.)

Petitioner appealed the denial of this claim. (Resp. Ex. E2.) The

First DCA affirmed the trial court’s ruling without a written opinion.

Queen, 282 So. 3d 61; (Resp. Ex. E4). The First DCA’s decision is due

deference under AEDPA, but because it did not explain its decision, this

Court “looks through” to the trial court’s written opinion to understand

the First DCA’s reasoning. Wilson, 138 S. Ct. at 1192.

The First DCA’s rejection of this claim was not contrary to or based

on an unreasonable application of clearly established federal law, 28

U.S.C. § 2254(d)(1), nor was it based on an unreasonable determination

of the facts, § 2254(d)(2). Even assuming Mr. Koon erred by allowing the

redacted video of the controlled drug buy to be taken into the jury

deliberation room, Petitioner points to no evidence that the jury actually

rewatched the video during its deliberations or gave the video any more

weight than the witnesses’ testimony. At trial, the jury not only saw the

audio-video recording of the controlled drug buy (as well as still

photographs taken from the recording), it heard testimony from

witnesses to the transaction, including the C.I., Willie Knight, and the

lead investigator, Officer Mitchell Cline. Knight testified to purchasing

$40 worth of cocaine in a controlled purchase and identified Petitioner in

court as the person who sold it to him. (Resp. Ex. B5 at 261–62.) Likewise,

Officer Cline testified to witnessing a hand-to-hand transaction between

the C.I. and a person he identified in court as Petitioner, and he testified

that the C.I.’s live audio feed reflected that the transaction was for drugs.

(Resp. Ex. B4 at 145–49.) Officer Cline, Officer Rick Glover, and Officer

Jason Byrd testified that they searched the C.I. and his vehicle before

and after the controlled buy to make sure the C.I. had no contraband.

(Resp. Ex. B4 at 141, 154–55, 239–40; Resp. Ex. B5 at 254–55.)

Petitioner can only speculate that he suffered prejudice from the

video recording being taken back to the jury deliberation room. But

speculation about the prejudicial effect of an error “is ‘insufficient to carry

the burden of a habeas corpus petitioner.’” Johnson v. Alabama, 256 F.3d

1156, 1187 (11th Cir. 2001) (quoting Aldrich v. Wainwright, 777 F.2d 630,

636 (11th Cir. 1985)). “It is not enough for the defendant to show that the

error[ ] had some conceivable effect on the outcome of the proceeding.”

Strickland, 466 U.S. at 693. Because Petitioner fails to show that the

state court unreasonably rejected his claim based on Strickland’s

prejudice prong, he is not entitled to relief on this claim.

D. Ground Four

Next, Petitioner alleges that trial counsel was ineffective for not

having the trial judge, the Honorable Leandra Johnson, disqualified.

(Doc. 1 at 13–15.)9 He alleges that, before joining the bench, Judge

Johnson had prosecuted Petitioner in a previous case and that, in another

case after becoming a judge, she sentenced Petitioner to more than the

statutory maximum. (Doc. 1 at 13.) According to Petitioner, he “made an

unrebutted statement at his sentencing that this previous sentence by

[Judge Johnson] exceeded the statutory maximum for the charged

offense.” (Id.) He argues that “[t]rial counsel failed to object to his Judge

presiding on this case and the Judge’s prejudice against the [Petitioner]

rose to the level of bias that defense counsel should have filed a motion

to disqualify.” (Id.) Petitioner argues that he had “a reasonable, well-

grounded fear that he would not receive a fair and impartial trial” before

Judge Johnson because she had once imposed an unlawful sentence on

9 Petitioner also filed a pro se motion in the Rule 3.850 proceedings to disqualify

Judge Johnson. (Resp. Ex. E1 at 43–47.) The trial court denied the motion. (Id. at 71–

72.)

him, and because he and the judge had an adversarial relationship. (Id.

at 14.) Petitioner alleges that the fact that Judge Johnson imposed the

statutory maximum sentence in this case, despite Petitioner’s “penury

gain of $10,” proves her bias and proves prejudice resulting from counsel’s

failure to disqualify the judge. (Id.)10 He also states that Judge Johnson

“has since recused herself from Petitioner’s case, without any reason

given.” (Id.)

Petitioner raised substantially the same claim as ground four in his

Amended Rule 3.850 Motion. (Resp. Ex. E1 at 61–66.) The trial court

identified Strickland as the governing standard (id. at 74–75) and

summarily denied the claim, writing:

In Ground 4, the Defendant argues that Counsel was

ineffective for failing to seek the trial judge’s disqualification. The

Defendant claims that the trial judge was prejudiced because she

had previously prosecuted the Defendant. The Defendant alleges

that he “made an unrebutted statement at his sentencing that [a]

previous sentence by [her] exceeded the statutory maximum for

the charged offense.”

It is likely considered deficient performance for counsel to

fail to file a motion for disqualification when it is appropriate to do

so. Thompson v. State, 990 So. 2d 482, 489–90 (Fla. 2008)

(emphasis added). However, the Defendant has not shown that a

10 Petitioner had a lengthy criminal history stretching back to 1985, which

included 19 prior convictions related to the sale or possession of cocaine, a conviction

related to dangerous drugs, and a conviction for attempted lewd and lascivious

assault on a child under the age of 16. (Resp. Ex. B2 at 281.) That criminal history

might have explained the trial court’s sentencing decision.

motion for disqualification was appropriate at the time of

sentencing. Although he correctly cites the law for the ground of

disqualification to be that “the party fears that he will not receive

a fair trial because of specifically described prejudice and bias of

the judge,” he has not specifically described the prejudice and bias.

Amended Motion at 15. While he alleges that the trial judge

prosecuted him in a previous case, the fact that the presiding judge

prosecuted a defendant in a previous case does not necessarily

present a direct conflict. W.I. v. State, 696 So. 2d 457, 458 (Fla. 4th

DCA 1997). The Defendant has provided no specific facts

supporting his contention of prejudice and bias on the part of the

trial judge. Additionally, he does not allege in his motion when he

advised counsel of the prior prosecution. Rule 2.330(e), Florida

Rules of Judicial Administration, provides that “a motion to

disqualify shall be filed within a reasonable time not to exceed 10

days after discovery of the facts constitution grounds for the

motion…” The court file reflects that the undersigned judge

presided over the case for over a year prior to the trial and

sentencing. Because the Defendant has failed to show that a

motion for disqualification was appropriate or was timely

requested, he has not shown that Counsel erred by failing to file

such a motion. Accordingly, Ground 4 must be denied.

(Id. at 77–78.)

Petitioner appealed the denial of this claim. (Resp. Ex. E2.) The

First DCA affirmed the trial court’s ruling without a written opinion.

Queen, 282 So. 3d 61; (Resp. Ex. E4). The First DCA’s decision is due

deference under AEDPA, but because it did not explain its decision, this

Court “looks through” to the trial court’s written opinion to understand

the First DCA’s reasoning. Wilson, 138 S. Ct. at 1192.

The First DCA’s rejection of this claim was not contrary to or based

on an unreasonable application of clearly established federal law, 28

U.S.C. § 2254(d)(1), nor was it based on an unreasonable determination

of the facts, § 2254(d)(2). Under the Florida Rules of Judicial

Administration in effect at the time, a party moving to disqualify a judge

must show “that the party fears that he or she will not receive a fair trial

or hearing because of specifically described prejudice or bias of the judge.”

Fla. R. Jud. Admin. 2.330(d)(1) (eff. to Feb. 28, 2021). “The validity of the

claim that [Petitioner’s] counsel failed to assert—that the state trial court

judge was subject to disqualification—is clearly a question of state law.”

Knight v. Sec’y, Fla. Dep’t of Corr., No. 17-12284-F, 2017 WL 5593485, at

*3 (11th Cir. Aug. 22, 2017). “A determination of whether certain

allegations satisfy Florida’s legal standard for disqualification of a judge

is within the province of the Florida courts.” Id. (citing Hendrix v. Sec’y,

Fla. Dep’t of Corr., 527 F.3d 1149, 1153 (11th Cir. 2008)). As a result,

although this ineffective assistance claim “is a federal constitutional

claim that the court considers in light of the clearly established law of

Strickland,” this Court is “bound by the [state court’s] interpretation of

its own law” because “the validity of the claim that counsel failed to assert

is clearly an issue of state law.” Id. (citing Wainwright v. Goode, 464 U.S.

78, 84 (1983)); see also Pinkney, 876 F.3d at 1295 (“[A]lthough the issue

of ineffective assistance … is one of constitutional dimension, we must

defer to the state’s construction of its own law when the validity of the

claim that … counsel failed to raise turns on state law.”).

The state post-conviction court addressed whether Petitioner’s

alleged facts provided an adequate basis for seeking recusal of Judge

Johnson under Florida law, and it determined they did not. As the court

explained,

Although [Petitioner] correctly cites the law for the ground of

disqualification to be that “the party fears that he will not receive

a fair trial because of specifically described prejudice and bias of

the judge,” he has not specifically described the prejudice and bias.

Amended Motion at 15. While he alleges that the trial judge

prosecuted him in a previous case, the fact that the presiding judge

prosecuted a defendant in a previous case does not necessarily

present a direct conflict. W.I. v. State, 696 So. 2d 457, 458 (Fla. 4th

DCA 1997). The Defendant has provided no specific facts

supporting his contention of prejudice and bias on the part of the

trial judge.

(Resp. Ex. E1 at 77–78.) As a federal habeas court, this Court must defer

to the state post-conviction court’s conclusion that, under state law,

Petitioner’s allegations were insufficient to show that Judge Johnson was

biased, such that trial counsel had any Sixth Amendment obligation to

move for her disqualification. Knight, 2017 WL 5593485, at * 4 (citing

Wainwright, 464 U.S. at 84). Likewise, that Petitioner accused Judge

Johnson of imposing a sentence in a previous case that he considered

excessive also does not establish judicial bias. Schultz v. Wainwright, 701

F.2d 900, 901 (11th Cir. 1983).

Moreover, Florida law imposes a time limit on moving to disqualify

a judge:

A motion to disqualify shall be filed within a reasonable time not

to exceed 10 days after discovery of the facts constituting the

grounds for the motion and shall be promptly presented to the

court for an immediate ruling. Any motion for disqualification

made during a hearing or trial must be based on facts discovered

during the hearing or trial and may be stated on the record,

provided that it is also promptly reduced to writing in compliance

with subdivision (c) and promptly filed.

Fla. R. Jud. Adm. 2.330(e) (eff. to Feb. 28, 2021). The state court docket

sheet reflects that Judge Johnson was first assigned to the case on

December 15, 2012 (over a year before trial) (Resp. Ex. A, Docket Sheet,

Docket Entry 87), and she presided over several pretrial conferences

between then and 2014 (see id., Docket Entries 96, 102, 108, 109, 119,

135, 142, 146). Judge Johnson also presided over some pretrial motions

and jury selection before she presided over the trial and sentencing. (Id.,

Docket Entries 116, 153, 154.) Thus, Petitioner would have learned well

in advance that Judge Johnson was presiding. And because her alleged

bias arose from prior cases involving Petitioner and Judge Johnson (one

when Judge Johnson was a prosecutor and one when she was a judge),

Petitioner also would have recognized the basis for her disqualification

as soon as he realized she was the presiding judge. Yet Petitioner fails to

state, either in his Amended Rule 3.850 Motion or in his federal habeas

petition, when (if ever) he informed Mr. Koon that because of these facts,

he feared that Judge Johnson would not be impartial. (See Doc. 1 at 13–

14; Resp. Ex. E1 at 61–66.) Thus, as the state post-conviction court

explained, Petitioner also fails to show that Mr. Koon could have timely

moved to disqualify Judge Johnson. (Resp. Ex. E1 at 78.) As a result, the

court concluded that Petitioner had failed to show that Mr. Koon’s

performance was deficient. (Id.)

Because “[t]he standards created by Strickland and § 2254(d) are

both highly deferential, … when the two apply in tandem, review is

doubly so.” Hittson, 759 F.3d at 1248. Petitioner’s allegations do not

overcome this doubly deferential standard of review. Relief on this claim

will therefore be denied.

E. Grounds Five and Six are Procedurally Defaulted

Finally, Petitioner raises two more claims of ineffective assistance

of counsel in Grounds Five and Six. In Ground Five, Petitioner contends

that Mr. Koon was ineffective for not moving to dismiss the information

because the information was not supported by an affidavit sworn to by a

material witness. (Doc. 1 at 15–19.) Under Florida Rule of Criminal

Procedure 3.140, before a prosecutor can charge a person by information,

the prosecutor must state under oath “his or her good faith in instituting

the prosecution and certifying that he or she has received testimony from

the material witness or witnesses for the offense.” Fla. R. Crim. P.

3.140(g). Petitioner acknowledges that the lead investigator, Officer

Cline (who testified at trial that he witnessed the controlled drug buy),

provided an affidavit supporting the information. (Doc. 1 at 17; see also

Resp. Ex. A at 5.) But Petitioner states that under State v. Weinberg, 780

So. 2d 214 (Fla. 5th DCA 2001), a law enforcement officer is not a

“material witness.”11 Instead, Petitioner claims, the C.I. was the

“material witness” whose affidavit should have been required, but the

11 In Weinberg, the Fifth DCA held that, based on the facts of that case, a

detective investigating prescription drug fraud was not a “material witness” because

the detective only “collected evidence [from a doctor’s office] in the form of an altered

prescription which the doctor’s office verbally verified had been altered.” 780 So. 2d

at 215. The court explained that “while an investigating officer may be a material

witness in some situations, this would not be the case here since the pharmacist and

doctor would be the material witnesses and there was no sworn affidavit from either.

The altered prescription is not something that can be interpreted by Detective Clifton

and, as such, she has no importance except for possibly establishing a chain of

evidence.” Id. at 215–16 (emphasis added). The Weinberg decision leaves open the

possibility that a law enforcement officer can be a “material witness” if he or she

witnessed the crime itself, as Officer Cline testified that he did.

information was not supported by an affidavit from the C.I. (See id. at

16.) Petitioner alleges that, but for counsel’s error, there is a reasonable

probability the outcome would have been different.

In Ground Six, Petitioner alleges that trial counsel was ineffective

because did not file a “motion to dismiss” the arrest warrant based on the

judge’s failure to find probable cause and the judge’s failure to sign the

arrest warrant under Florida Rule of Criminal Procedure 3.121(6) and

Florida Statutes Sections 901.02(3) and (4). (Doc. 1 at 19–20.) Petitioner

alleges that, but for counsel’s error, there is a reasonable probability the

result would have been different.

Petitioner presented neither ground in his Rule 3.850 Motion or

Amended Rule 3.850 Motion. (Resp. Ex. E1 at 11–29, 48–70.) Nor does it

appear that Petitioner raised these claims in any other appropriate state

proceeding. Thus, Respondents argue that Grounds Five and Six are

unexhausted. (Doc. 7 at 10–12.) And because time has now expired for

Petitioner to raise these claims in a state post-conviction motion, due to

the expiration of Rule 3.850(b)’s two-year limitations period,

Respondents argue that the claims are procedurally defaulted because it

would be futile for Petitioner to attempt to exhaust them in state court.

(Id.) Respondents also argue that Petitioner fails to allege, let alone

establish, cause and prejudice for his failure to raise these claims in state

court. (Id. at 11, 12.) Indeed, Petitioner did not even acknowledge the

procedural default or lack of exhaustion in his federal habeas petition,

even though the habeas form prompted him to do so. In the federal

habeas petition, Petitioner incorrectly asserts that he raised Grounds

Five and Six in state post-conviction proceedings (Doc. 1 at 19, 20), which

contradicts his own recounting of the claims he raised under Rule 3.850

(id. at 2–3). And although the federal habeas form asked Petitioner to

explain why he did not exhaust Grounds Five or Six, Petitioner simply

stated “N/A.” (Id. at 18, 20.)

In his Reply, Petitioner asserts, without support, that he did

properly exhaust Grounds Five and Six. (Doc. 12 at 1.) But on the next

page, he acknowledges that “Ground Five and Ground Six was [sic] not

raised in Petitioner’s rule 3.850 motion as a 6th amendment violation

under Strickland v. Washington, 466 U.S. 668 (1984).” (Id. at 2.)

Petitioner does not allege that he can overcome the procedural default

under the cause-and-prejudice exception. However, he argues that he can

avoid the procedural default under the miscarriage-of-justice exception

discussed in Murray v. Carrier, 477 U.S. 478 (1986), Schlup v. Delo, 513

U.S. 298 (1995), and House v. Bell, 547 U.S. 518 (2006), because he is

actually innocent. (Id. at 2–3.)

“[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. To invoke

the actual innocence exception, a petitioner “must show that it is more

likely than not that no reasonable juror would have convicted him” in the

light of newly discovered evidence. Schlup, 513 U.S. at 327. The new

evidence must be “new reliable evidence––whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence––that was not presented at trial.” Id. at 324. “This exception is

exceedingly narrow in scope, however, and requires proof of actual

innocence, not just legal innocence.” Ward, 592 F.3d at 1157 (quotation

marks and citation omitted).

Petitioner’s effort to invoke the actual innocence exception fails for

three reasons. First, Petitioner does not point to any “exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence” that was not presented at trial, which is the type of “new

reliable evidence” required to trigger that exception. Schlup, 513 U.S. at

327. Second, Grounds Five and Six, which allege trial counsel’s failure to

seek dismissal of the information because it was not supported by a

legally sufficient affidavit and counsel’s failure to move to “dismiss” the

arrest warrant, concern Petitioner’s legal innocence, not his factual

innocence, so neither ground is appropriate for the miscarriage of justice

exception. Ward, 592 F.3d at 1157. And third, Petitioner fails to show

why “it is more likely than not that no reasonable juror would have

convicted him” in the light of any newly discovered evidence. Schlup, 513

U.S. at 327. Indeed, the C.I. (Willie Knight) testified that Petitioner sold

him $40 worth of cocaine (Resp. Ex. B5 at 261–62), and field testing and

lab testing confirmed that the substance was cocaine (Resp. Ex. B4 at

157; Resp. Ex. B5 at 305–06.) Officer Cline testified that he witnessed a

hand-to-hand transaction between Petitioner and the C.I., and he

identified Petitioner in open court as the person who sold cocaine to the

C.I. (Resp. Ex. B4 at 145–49.) And the transaction was captured by an

audio-video recording. The recording was introduced into evidence as

State’s Exhibit 1 and played for the jury (id. at 155, 215–17), and still

photograph excerpts were published as well as State’s Exhibits 3(a) and

3(b) (id. at 160–61). (See also Resp. Ex. B2 at 256–57.) Thus, the evidence

against Petitioner was considerable.

In short, Grounds Five and Six do not merit habeas relief because

they are unexhausted and procedurally defaulted. 28 U.S.C. § 2254(b)(1);

Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999) (“[I]f the petitioner

simply never raised a claim in state court, and it is obvious that the

unexhausted claim would now be procedurally barred due to a state-law

procedural default, the federal court may foreclose the petitioner’s filing

in state court; the exhaustion requirement and procedural default

principles combine to mandate dismissal.” (citation omitted)). Petitioner

does not assert that he can overcome the procedural default of Grounds

Five and Six under the cause-and-prejudice standard, and he fails to

show he can satisfy the actual innocence exception. Thus, relief on these

grounds will be denied.

V. Evidentiary Hearing

“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) (citation omitted). “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)

(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. Moreover, “[i]f the

applicant has failed to develop the factual basis of a claim in State court

proceedings,” a district court is prohibited from holding an evidentiary

hearing except under the narrow circumstances described in § 2254(e)(2),

the limits of which the Supreme Court reinforced in Shinn v. Ramirez,

142 S. Ct. 1718 (2022). 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.

VI. Conclusion

The Court has reviewed each of Petitioner’s claims and finds that

none warrants habeas relief under 28 U.S.C. § 2254. Accordingly, it is

ORDERED:

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

WITH PREJUDICE.

2. The Clerk will enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

3. If Petitioner appeals the denial of this Petition, the Court denies

a certificate of appealability (COA). Because the Court has

determined that a COA is not warranted, the Clerk will

terminate from the pending motions report any motion to

proceed on appeal as a pauper that may be filed. Such

termination will serve as a denial of the motion. !”

DONE AND ORDERED at Jacksonville, Florida this 11th day of

January, 2023.

ia = ADAMS, JR. ae

United States District Judge

The Court should issue a COA 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)). After consideration

of the record as a whole, the Court will deny a COA.

Al

Copies to:

Counsel of record

Pro se petitioner