Moak v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

THOMAS MOAK,

Petitioner,

v. Case No. 8:19-cv-2477-VMC-CPT

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

Thomas Moak, a Florida prisoner, timely filed a pro se petition for writ of habeas

corpus under 28 U.S.C. § 2254 (Doc. 1) and a supporting memorandum (Doc. 2).

Respondent filed a response opposing the petition. (Doc. 12.) Moak filed a reply. (Doc.

14.) Upon consideration, the petition is DENIED.

I. Procedural History

A state-court jury convicted Moak of three counts of second-degree murder with

a firearm. (Doc. 13-4, Ex. 31.) The state trial court sentenced Moak to three

consecutive terms of life in prison. (Id., Ex. 34.) The state appellate court per curiam

affirmed the convictions and sentences. (Id., Ex. 39.) Moak then sought postconviction

relief under Florida Rule of Criminal Procedure 3.850. (Id., Ex. 41.) The state trial

court denied Moak’s claims, and the state appellate court per curiam affirmed the denial

of relief. (Doc. 13-5, Ex. 42; Doc. 13-7, Ex. 45.) Moak also filed a petition alleging

ineffective assistance of appellate counsel under Florida Rule of Appellate Procedure

9.141(d). (Doc. 13-7, Ex. 48.) The state appellate court denied Moak’s petition. (Id.,

Ex. 49.)

II. Facts; Trial Testimony1

On the evening of February 10, 2012, Moak shot and killed his father, mother,

and sister in the house they shared. Moak was fifty-eight years old at the time of the

murders. He had been living in his parents’ house for about nine years, and his sister

Renee had moved in approximately two years before the incident. The environment

at the house was chaotic, with everyone “bickering all the time.” (Id., Ex. 53, p. 232.)

The chaos stemmed in large part from Renee’s “serious drinking problem.” (Id., pp.

231-33.) Moreover, Moak’s mother suffered from dementia, which caused her to be

“confused” and “combative” at times. (Id., p. 232.) Moak himself suffered from

depression, and he was “very anxious” about his son’s military deployment in

Afghanistan. (Id., Ex. 52, p. 179; Id., Ex. 53, pp. 251-52.) Moak had also gone through

a divorce “in the early 2000s,” which contributed to his depression. (Id., Ex. 52, p. 182;

Id., Ex. 55, p. 420.)

On the night of the murders, Renee was drunk, and Moak’s parents were

fighting. Moak’s mother tried to throw him and his sister out of the house. Fighting of

this sort had been going on for a year or two, but Moak later claimed in his statement

to police that he had reached a “breaking point” that night. (Id., Ex. 53, p. 284.) Moak

1 This summary is based on the trial transcript.

told everyone in the house to “let it f*cking go,” but they refused. (Id.) Moak then

asked Renee to leave the house. She refused, saying that Moak was not her husband

or father. Moak then retrieved a rifle from under his bed. He returned to his sister, who

was sitting on the porch. Moak again asked Renee to leave, telling her to “stop

escalating the problem with mom and dad.” (Id., p. 286.) Renee told Moak to “mind

[his] f*cking business,” whereupon Moak shot her in the head. (Id., p. 287; Id., Ex. 54,

p. 370.)

Moak’s father began to scream. At the time, he was in the master bedroom with

Moak’s mother, who was still in bed. Moak shot his father, but the first shot did not

“phase [sic]” him. (Id., Ex. 53, p. 289.) Moak did not want his father to suffer, so he

shot him a second time. Moak then shot his mother as she lay in bed. Moak’s parents

and his sister died from their gunshot wounds.

Around 11:00 p.m., several deputies arrived on the scene. One of the deputies

heard a male voice inside a bedroom saying, “Oh my god. I killed everybody. I should

shoot myself.” (Id., Ex. 51, pp. 45-46.) Shortly thereafter, another deputy saw Moak

with his hands up walking toward the back door, which led onto the porch. This

deputy told Moak to keep his hands up and unlock the door. Moak complied, saying,

“I’m done. I’m done.” (Id., p. 59.) After the deputy took Moak into custody, Moak

said, “I did it, I did it. I’m tired of the fighting and the drinking and the bullsh*t.” (Id.)

He also said, “I killed them all. I killed my parents and my sister. They’re better off

dead.” (Id.)

Moak was taken to the police station, where Detective Scott Graber interviewed

him at approximately 1:30 a.m. after he waived his Miranda2 rights. During the

interview, Moak described the killings, claimed that he had just “snap[ped],” and

lamented that he was “going up to the big f*cking house” to “get a f*cking lethal

injection.” (Id., Ex. 53, pp. 306-07.)

III. Standards of Review

A. AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this

proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

can be granted only if a petitioner is in custody “in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides

that federal habeas relief cannot be granted on a claim adjudicated on the merits in

state court unless the state court’s adjudication:

(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

A decision is “contrary to” clearly established federal law “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

2 Miranda v. Arizona, 384 U.S. 436 (1966).

a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).

A decision involves an “unreasonable application” of clearly established federal law

“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.

AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell v. Cone, 535

U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s

application of clearly established federal law is objectively unreasonable, and . . . an

unreasonable application is different from an incorrect one.” Id. at 694; see also

Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas

corpus from a federal court, a state prisoner must show that the state court’s ruling on

the claim being presented in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.”).

The state appellate court affirmed Moak’s convictions and sentences, denied his

petition alleging ineffective assistance of appellate counsel, and affirmed the denial of

postconviction relief without discussion. These decisions warrant deference under

§ 2254(d)(1) because “the summary nature of a state court’s decision does not lessen

the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002).

When a state appellate court issues a silent affirmance, “the federal court should ‘look

through’ the unexplained decision to the last related state-court decision that does

provide a relevant rationale” and “presume that the unexplained decision adopted the

same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

B. Ineffective Assistance of Counsel

Moak alleges ineffective assistance of trial and appellate counsel. Ineffective-

assistance-of-counsel claims are analyzed under the test established in Strickland v.

Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient

performance by counsel and resulting prejudice. Id. at 687. Deficient performance is

established if, “in light of all the circumstances, the identified acts or omissions [of

counsel] were outside the wide range of professionally competent assistance.” Id. at

690. However, “counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Id.

Moak must show that counsel’s alleged error prejudiced the defense, because

“[a]n error by counsel, even if professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error had no effect on the judgment.”

Id. at 691. To demonstrate prejudice, Moak must show “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.

The Strickland standard applies to claims of ineffective assistance of appellate

counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v. Jones, 941 F.2d 1126,

1130 (11th Cir. 1991). To establish a claim of ineffective assistance of appellate

counsel, Moak must show that appellate counsel’s performance was objectively

unreasonable, and that there is a reasonable probability that, but for this performance,

he would have prevailed on his appeal. Robbins, 528 U.S. at 285-86.

Obtaining relief on a claim of ineffective assistance of counsel is difficult on

federal habeas review because “[t]he standards created by Strickland and § 2254(d) are

both highly deferential, and when the two apply in tandem, review is doubly so.”

Richter, 562 U.S. at 105 (internal quotation marks and citations omitted); see also Burt

v. Titlow, 571 U.S. 12, 15 (2013) (stating that this doubly deferential standard of review

“gives both the state court and the defense attorney the benefit of the doubt”). “The

question [on federal habeas review of an ineffective-assistance claim] ‘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) (quoting Schriro v.

Landrigan, 550 U.S. 465, 473 (2007)).

C. Exhaustion of State Remedies; Procedural Default

A federal habeas petitioner must exhaust his claims in state court before

presenting them in his federal habeas petition. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v.

Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an

opportunity to act on his claims before he presents those claims to a federal court in a

habeas petition.”). The exhaustion requirement is satisfied if the petitioner fairly

presents his claim in each appropriate state court and alerts that court to the federal

nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971).

The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default

which will bar federal habeas relief, unless either the cause and prejudice or the

fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d

1135, 1138 (11th Cir. 2001). A fundamental miscarriage of justice occurs in an

extraordinary case where a constitutional violation has probably resulted in the

conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327

(1995); Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). To establish cause

for a procedural default, a petitioner “must demonstrate that some objective factor

external to the defense impeded the effort to raise the claim properly in state court.”

Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). A petitioner demonstrates

prejudice by showing that “there is at least a reasonable probability that the result of

the proceeding would have been different” absent the constitutional violation.

Henderson, 353 F.3d at 892.

IV. Discussion

A. Ground One

Moak argues that trial counsel was ineffective for failing to move to suppress

the statements he made during his interview with law enforcement. He alleges that,

after Detective Graber read him his Miranda rights, he said he wanted an attorney.

According to Moak, Graber violated Miranda by continuing the interview despite his

request for an attorney. In addition, Graber allegedly gave a “vague and evasive”

answer to Moak’s question about what would happen if he waived his constitutional

rights and spoke to Graber. (Doc. 2, pp. 4-5.) In light of these alleged constitutional

violations, Moak asserts that trial counsel should have moved to suppress all of his

statements—a motion that was “very likely to succeed.” (Id., p. 7.) Instead, counsel

merely sought redactions of “specific parts” of the statements and “inclusion of the

rest.” (Id., p. 6.)

The state court denied Moak’s claim that trial counsel was ineffective for not

filing a motion to suppress:

Defendant contends that his statements were obtained in violation of

Traylor v. State, 596 So. 2d 957 (Fla. 1992) and Almeida v. State, [737 So.

2d 520 (Fla. 1999)], which prohibit law enforcement from giving evasive

answers in response to a suspect’s questions in order to “steamroller” the

suspect into continuing on with a statement, rather than invoking his or

her [] Miranda rights. Defendant cites in support to a portion in the

transcript of his statement in which Defendant, after being Mirandized,

asked Detective Graber to tell him what would happen if he gave up his

rights and answered the Detective’s questions. Defendant alleges that

Graber’s answer was evasive and designed to keep Defendant from

remaining silent, and that his trial attorney should have moved to

suppress his entire statement on this ground.

. . .

“[I]f, at any point during custodial interrogation, a suspect asks a clear

question concerning his or her rights, the officer must stop the interview

and make a good-faith effort to give a simple and straightforward

answer.” Murdock [v. State], 115 So. 3d [1050,] 1055 [(Fla. 4th DCA

2013)] (quoting State v. Glatzmayer, 789 So. 2d 297, 303 (Fla. 2001)

(quoting Almeida v. State, 737 So. 2d 520, 525 (Fla. 1999))).

Misinformation or obfuscation in response to a suspect’s question may

make the confession involuntary if the answers caused the suspect to have

“unrealistic hope and delusions as to his [or her] true position.” Wilson v.

State, 242 So. 3d 484, 497 (Fla. 2d DCA 2018) (internal citations

omitted); accord Cuervo v. State, 967 So. 2d 155, 165-66 (Fla. 2007) (finding

effect of Miranda warning was rendered nullity where police confused

suspect about the meaning of Miranda rights with obfuscating statements

and questions). To warrant relief, the challenged conduct[] must arise to

“outrageous behavior” that had a “causal nexus to the confession.”

Wilson, 242 So. 3d at 498; accord Nelson v. State, 850 So. 2d 514, 522 (Fla.

2003) (police misinformation must be “such a substantial

misrepresentation as to automatically render [the] confession

involuntary.”).

Defendant cites to the following passage as evidence that he was mislead

[sic] and tricked by Detective Graber’s evasive answers into waiving his

rights:

Det. Graber: . . . Okay, Mister Moak. Uh, you do have the

right to remain silent. Anything you say can and will be

used against you in a court of law. You have the right to an

attorney and have him or her present with you before and

during questioning. If you cannot afford to hire an attorney

one will be appointed to represent you at no cost to you

before and during questioning if you wish. You can decide

at anytime [sic] to exercise these rights and not answer any

questions or make any statements. Do you understand each

of these right [sic] Mister Moak?

Defendant: Yes, I do.

Det. Graber: You do?

Defendant: Yeah.

Det. Graber: Okay. Having these in mind would you uh,

tell me uh, what happened tonight?

Defendant: No. I want an attorney.

Det. Graber: You want an attorney? Okay. Okay. That will

conclude the interview which didn’t start. It’s about one

thirty. Okay.

Defendant: Public Defender. I have no money.

Det. Graber: Okay.

Defendant: I know what I did is not nice.

Det. Graber: I’m just writing.

Defendant: I understand that, sir. I do understand.

Det. Graber: Okay. Alright.

Defendant: Let me ask you something. If I give up my rights

to answer those questions.

Det. Graber: I’m sorry.

Defendant: I said if I give up that right

Det. Graber: Yes sir.

Defendant: to answer your questions where’s that go from

there?

Det. Graber: Where does it go from there? I mean you asked

for an attorney for you to be able to [sic]. I’m just gonna ask

you what happened. Okay? I mean, if you want to change

your mind, I’ll listen to what you have to say and we’ll go

from there. Obviously you are under arrest. You know that,

correct?

Defendant: Absolutely I know I’m under (laughed). I know

that!

Det. Graber: Okay. Well again if you want to tell your side

of it and at this point, you know, feel free[;] otherwise I’ll,

I’m gonna walk out. (knock on door). Yeah. Give me one

second.

Defendant: Yep.

Det. Graber: Okay. (Door opening/closing).

* * *

Det. Graber: (Door closing). Before I sit down. I know you.

I’m sorry. I know you were trying to readdress the issue of

actually maybe talking to me.

Defendant: Yeah I said, if I waive my rights what does,

what does that mean?

Det. Graber: It means that I want to get your side of the

story and that you’re willing to talk to me knowing that, you

know, I did read you your rights, but you still want to be

able to explain to me what happened.

Defendant: Um.

Det. Graber: [I]s that something that you would like to do

sir at this time?

Defendant: Yeah.

Det. Graber: Okay.

Male Voice: We’ll read you your rights again. I want to

make sure that you understand them. And this is, we’re not

holding anything back here and we’re not gonna try to trick

you into anything, you know. This is

Defendant: Okay.

Male Voice: this is your decision.

Defendant: I understand that. I, I truly understand that.

Male Voice: We’re gonna

Defendant: Trust me. Look it. I’ve been cooperative all this

Male Voice: Yeah, you have.

Having reviewed this excerpt, the Court does not find that either

Detective Graber, or the other deputy present in the interview room,

made misleading, evasive, or coercive statements to Defendant.

Detective Graber’s explanation of what it meant to waive his Miranda

rights was not deceptive; it was, in fact, a “common sense” explanation

that Defendant would be giving his version of events so that the deputies

would understand his side, with the knowledge that he did not have to

do so. See Almeida v. State, 737 So. 2d 520, 525 (Fla. 1999) (encouraging

law enforcement officers to give “basic, common sense information”

concerning suspect’s right to counsel when asked by suspect, and not to

ignore questions). Graber reminded Defendant [he] was under arrest.

This disabused any misunderstanding that Defendant was a mere

suspect. The fact that Graber asked Defendant if he wanted to give his

version of the events was not improper, as encouraging a defendant to

cooperate with law enforcement does not amount to coercive conduct.

See Martin [v. State], 107 So. 3d [281,] 305 [(Fla. 2012)]; Bussey v. State,

184 So. 3d 1138, 1141 (Fla. 2d DCA 2015).

Moreover, the second deputy told Defendant that they wanted to ensure

that he understood his rights; that the decision to answer questions was

Defendant’s to make; and that Defendant would be read his rights for a

second time to ensure that he understood them. Courts have found that

an officer’s response, which reaffirmed a defendant’s sole right to decide

on whether to invoke his or her Miranda rights, was not a misleading or

evasive answer, but in fact, an honest one. See Glatzmayer, 789 So. 2d at

305 (finding officer’s response, informing defendant that it was his

decision and he should make up his own mind about whether to obtain

counsel, was “simple, reasonable, and true” answer to defendant’s

inquiry).

This case, consequently, is distinguishable from Almeida, supra, where

officers ignored and avoided answering a defendant’s direct question

about the efficacy of having an attorney present. It is also dissimilar from

cases involving deliberate attempts to mislead a defendant, such as in

Cuervo, supra, where officers told a non-English-speaking defendant, after

he invoked his right to remain silent, that there was “still time” to talk,

thereby suggesting there was a window of time for vindication. In Dooley

v. State, 743 So. 2d 65, 69 (Fla. 4th DCA 1999), officers improperly told

the defendant that if he waived his Miranda rights at that time, it would

not affect his ability to invoke his rights in the future, causing the

defendant to be misled into believing he could prevent his statements

from being used by invoking Miranda at a later late.

The Court was also able to observe the second Mirandizing of Defendant

as recorded on State’s trial Exhibit 15. Detective Graber clearly and

distinctly read Defendant his rights, using a small card from his wallet,

while seated in a corner of the room. Defendant acknowledged that he

understood his rights and said he was willing to give a statement.

Defendant was clearly upset but not emotional at this point, and his

interaction with the officers was lucid and conversational in tone.

Compare with DeConingh v. State, 433 So. 2d 501, 502-04 (Fla. 1983)

(finding confession involuntary based on psychological coercion where

witnesses described defendant as upset, crying, confused, disoriented,

under medication, and hysterical at time of questioning). Defendant

expressed no hesitancy or confusion. Notably, he said things during the

interview indicating his full awareness that he was making statements

that would be used against him. For example, Defendant said, “And I

know I’m hanging myself right now and I don’t give a rat’s ass. I know

I'm hanging myself.” "I’m not a f—king liar. . . I will stand up for what I

f—king did and I’m a man.” “But you know where I'm going to go? I

know where I’m going to go. . . I’m going up to the big f—king house up

there and get a f—king lethal injection. I already know it and I don’t f—

king care at this f—king point.”

Counsel’s statements to the trial court at the September 29, 2014, pretrial

hearing make plain that counsel did not believe that Defendant’s

statement was involuntary, and that counsel intentionally decided not to

file a motion to suppress it. The Court cannot conclude that this strategy

fell outside the wide range of professionally competent assistance. Even

had counsel filed such a motion, it would have been denied, so that

Defendant cannot demonstrate resulting prejudice.

For all of these reasons, this claim is without merit.

(Doc. 13-5, Ex. 42, pp. 2-11 (record citations omitted).)

The state court reasonably rejected Moak’s ineffective-assistance claim. To

succeed on this claim, Moak was required to “make a strong showing that [his

statement to police] would have been suppressed had counsel properly filed a motion

[to suppress].” Pineda v. Warden, Calhoun State Prison, 802 F.3d 1198, 1203 (11th Cir.

2015). Moak failed to make the required showing. As the state court correctly

concluded, Detective Graber and the other deputy in the room gave “simple and

straightforward answer[s]” to Moak’s question about his Miranda rights. Almeida, 737

So. 2d at 525. Graber explained that a Miranda waiver meant that he would “get

[Moak’s] side of the story and that [Moak was] willing to talk to [him] knowing that,

you know, [he] did read [Moak his] rights, but [Moak] still want[ed] to be able to

explain to [him] what happened.” (Doc. 13-5, Ex. 42, p. 8.) The other deputy said that

it was Moak’s “decision” whether to waive his rights, and that he wanted to “make

sure” Moak understood his rights before proceeding with questioning. (Id.) Nothing

about these responses suggests that the deputies gave “evasive answer[s],” “skip[ped]

over the question,” or “steamroll[ed]” Moak. Almeida, 737 So. 2d at 525. Thus, any

motion to suppress based on the deputies’ responses would have been meritless.

Moak also contends that trial counsel could have sought to suppress his

statements on the ground that the interview should have ended once he asked for a

lawyer. This argument is meritless. “[A] statement made by a suspect in custody in

response to police interrogation is inadmissible against him at trial unless the police

first advised him of his so-called Miranda rights, including the right to remain silent

and the right to an attorney, and he knowingly and voluntarily waived those rights.”

Lukehart v. Sec’y, Fla. Dep’t of Corr., 50 F.4th 32, 42-43 (11th Cir. 2022) (citing Miranda,

384 U.S. at 484-85). “Once a suspect invokes his right to an attorney, police

interrogation must stop ‘until counsel has been made available to him, unless the accused

himself initiates further communication, exchanges, or conversations with the police.’” Id.

(emphasis added) (quoting Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). “A

defendant ‘initiates’ further conversation with law enforcement when his statements

evidence ‘a willingness and a desire for a generalized discussion about the

investigation.’” United States v. Roper, 842 F. App’x 477, 480 (11th Cir. 2021) (quoting

Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983)).

Here, Moak initially invoked his right to counsel, telling Detective Graber that

he “want[ed] an attorney.” (Doc. 13-5, Ex. 42, p. 7.) Graber then ended the interview

and began writing something down. Without any prompting, Moak asked Graber, “If

I give up my rights to answer those questions,” “where’s that go from there?” (Id., pp.

7-8.) Graber answered the question, re-advised Moak of his rights, and confirmed his

waiver of those rights before proceeding with questioning. Thus, the state-court record

reflects that Graber appropriately ended the interview when Moak invoked his right to

counsel, and that Moak himself initiated further conversation with law enforcement.

See Bassett v. Singletary, 105 F.3d 1385, 1387 (11th Cir. 1997) (holding that, after

invoking “his right to counsel,” defendant “initiated further conversation by inquiring

‘well, what do you want, anyway?’”). Faced with this record, the trial court would

have denied a motion to suppress that raised the argument that Graber violated

Miranda by continuing the interview. Trial counsel cannot be deemed ineffective

where, as here, he fails to raise a meritless argument. See Williams v. Sec’y, Fla. Dep’t of

Corr., No. 21-12871-J, 2022 WL 520202, at *1 (11th Cir. Feb. 9, 2022) (“Any motion

to suppress would have been meritless because the record shows that detectives ceased

the interrogation after Mr. Williams expressed his desire for a lawyer, he reinitiated

the conversation, and the detectives re-advised him of his rights and obtained a second

waiver form before proceeding with the interrogation. As such, counsel’s performance

was not deficient for failing to raise a meritless argument.” (citations omitted)).

In sum, Moak does not show that the state court’s ruling involved an

unreasonable application of Strickland or was based on an unreasonable factual

determination. Thus, he is not entitled to relief on Ground One.

B. Ground Two, Sub-Claim A

Moak contends that the trial court “abused its discretion” by admitting the

portion of his confession in which Detective Graber advised him of his Miranda rights

and he waived those rights.3 (Doc. 2, p. 7.) According to Moak, the State used the

advisement and waiver of his Miranda rights to rebut his primary defense at trial—

namely, that he was insane when he committed the murders. Moak contends that the

admission of this portion of the confession violated his federal due process rights,

rendering the trial fundamentally unfair.

Respondent argues that Moak failed to exhaust this claim in state court.

Respondent acknowledges that both before and during trial, Moak “objected to all

portions of the videotaped statement discussing [his] rights and his waiver of rights.”

(Doc. 12, p. 35.) Respondent also concedes that, on direct appeal, Moak “again argued

that the trial court abused its discretion by admitting the portion of the statement

discussing [his] rights and his waiver of rights.” (Id.) Respondent contends, however,

that Moak never argued in state court that “admission of the statements would violate

his federal due process rights or render his trial fundamentally unfair.” (Id.) Thus,

3 As noted above, after Moak initiated further discussions with the deputies, Graber re-read Moak his

Miranda rights. Graber then asked Moak whether he understood those rights, and Moak said he did.

Moak then indicated that he would “talk to [Graber].” (Doc. 13-17, Ex. 53, p. 280.)

according to Respondent, Moak failed to “alert the state court [to] the federal nature

of his claim.” (Id.)

The Court concludes that Moak exhausted this claim. To properly exhaust a

claim, a petitioner “must fairly present [the] claim in each appropriate state court . . .,

thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S.

27, 29 (2004). “A litigant wishing to raise a federal issue can easily indicate the federal

law basis for his claim in a state-court petition or brief, for example, by citing in

conjunction with the claim the federal source of law on which he relies or a case

deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’”

Id. at 32. A petitioner fairly presents a federal claim by citing a state case that “decid[es]

such a claim on federal grounds.” Wells v. Sec’y Dep’t of Corr., 343 F. App’x 581, 584

(11th Cir. 2009) (holding that petitioner fairly presented federal claim where he “cited

and discussed only one case,” a “Florida appellate [decision]” that resolved claim on

federal constitutional grounds).

Before the state trial court, Moak did not cite any federal cases in opposing

admission of the advisement and waiver of his Miranda rights. Nor did he expressly

argue that admission of this evidence would violate federal law. The same is true of

Moak’s arguments on direct appeal. Nevertheless, at both the trial-court and appellate

levels, Moak relied on State v. Burwick, 442 So. 2d 944 (Fla. 1983), a Florida Supreme

Court decision that rested in part on federal constitutional grounds. (Doc. 13-1, Ex.

17, p. 2; Doc. 13-4, Ex. 36, p. 6.) Burwick held that the government may not rebut an

insanity defense by introducing evidence that, after receiving Miranda warnings, a

defendant chose to remain silent or asked for an attorney. 442 So. 2d at 945. The

Florida Supreme Court reasoned that it would be “fundamentally unfair for the state

to lure [a defendant] into remaining silent then impeach the man with this very same

silence.” Id. at 948. According to the court, “[t]o permit the state to benefit from the

fruits of its own deceptions [would] violate[] the due process clause of the fourteenth

amendment and article I, section 9, of the Florida Constitution.” Id. Because Burwick

rested in part on federal due process grounds, Moak’s citation of that decision was

sufficient to alert the state courts to the federal nature of his claim. See Turner v. Inch,

No. 3:17-cv-869-RV-EMT, 2019 WL 2527576, at *7 (N.D. Fla. May 6, 2019)

(“Petitioner cited at least two Florida state cases which resolved the due process issue

on federal grounds. . . . The undersigned concludes this was sufficient to alert the First

DCA to the federal nature of Petitioner’s claim, and thus satisfied the ‘fair

presentation’ requirement.”), adopted by 2019 WL 2526190 (N.D. Fla. June 19, 2019).

Although Moak fairly presented this claim in state court, he is not entitled to

relief because he cannot show that the state court’s rejection of the claim was

objectively unreasonable. “[F]ederal courts will not generally review state trial courts’

evidentiary determinations.” Taylor v. Sec’y, Fla. Dep’t of Corr., 760 F.3d 1284, 1295

(11th Cir. 2014). “Indeed, in a habeas corpus action brought by a state prisoner, [the

court’s] authority is severely restricted in the review of state evidentiary rulings.” Id.

“Habeas relief is warranted only when the error so infused the trial with unfairness as

to deny due process of law.” Id.; see also Mills v. Singletary, 161 F.3d 1273, 1289 (11th

Cir. 1998) (“We will not grant federal habeas corpus relief based on an evidentiary

ruling unless the ruling affects the fundamental fairness of the trial.”). “A denial of

fundamental fairness occurs whenever the improper evidence is material in the sense

of a crucial, critical, highly significant factor.” Snowden v. Singletary, 135 F.3d 732, 737

(11th Cir. 1998).

Moak cannot meet this “high bar.” Taylor, 760 F.3d at 1296. He contends that

the trial court violated his federal due process rights by admitting the portion of the

confession in which he was advised of—and waived—his Miranda rights. To be sure,

the Supreme Court has held that a defendant’s due process rights are violated if the

government uses his “silence after receiving Miranda warnings [as] evidence of his

sanity.” Wainwright v. Greenfield, 474 U.S. 284, 285, 295 (1986). Greenfield rested on the

premise that, “when post-Miranda warnings silence is used to prove sanity,” the

government breaches its “implied promise . . . that silence will carry no penalty.” Id.

at 293, 295; accord Burwick, 442 So. 2d at 947-48 (holding that, when the government

“rebut[s] the defense of insanity with evidence . . . of a defendant’s desire to remain

silent and his request for an attorney,” it breaches the “assurances contained within

the Miranda warning”).

Here, however, the State agreed that Moak’s initial invocation of his Miranda

rights would not be admitted at trial. (Doc. 13-7, Ex. 50, p. 11.) And Moak’s invocation

of his rights was omitted from the recording of the confession that was played at trial.

(Id., Ex. 53, pp. 273, 280.) Thus, there is no basis to conclude that the trial court

violated Greenfield’s bar on the use of post-Miranda silence to rebut an insanity defense.

Nor is there any support for Moak’s argument that due process forbade the jury from

hearing that he was subsequently re-advised of (and waived) his Miranda rights. Moak

has not cited—and the Court cannot locate—any authority suggesting that a

defendant’s due process rights are violated if a trial court admits evidence that he was

informed of his Miranda rights and chose to waive them. Cf. United States v. Bailey, 957

F.2d 439, 442 (7th Cir. 1992) (“FBI agents described [at trial] the conditions

surrounding Bailey’s confession to show it was not coerced. They testified that Miranda

warnings were given and that Bailey waived his rights without requesting counsel.”).

Moreover, the advisement and waiver of Moak’s Miranda rights were relevant

to the voluntariness of his confession. The trial court, using Florida’s pattern jury

instruction on a defendant’s out-of-court statements, instructed the jury that “[a]

statement claimed to have been made by the defendant outside of court has been

placed before you. Such a statement should always be considered with caution and be

weighed with great care to make certain that it was freely and voluntarily made.

Therefore, you must determine from the evidence that the defendant’s alleged

statement was knowingly, voluntarily, and freely made.” (Doc. 13-7, Ex. 57, p. 682

(citing Fla. Std. Jury Instr. (Crim.) 3.9(b)).) Whether a defendant was advised of—and

waived—his Miranda rights is plainly relevant to the voluntariness of his statements.

See United States v. Jones, 32 F.3d 1512, 1517 (11th Cir. 1994) (noting, as one factor

supporting a finding of voluntariness, that defendant “was advised of his Miranda

rights twice” and “signed a waiver of rights form”).

For these reasons, Moak fails to establish that the admission of the advisement

and waiver of his Miranda rights “affect[ed] the fundamental fairness of the trial.”

Singletary, 161 F.3d at 1289. The state court’s resolution of his claim was not contrary

to, or an unreasonable application of, clearly established federal law. Accordingly,

Moak is not entitled to relief on Ground Two, Sub-Claim A.

C. Ground Two, Sub-Claim B

Moak contends that the trial court erroneously prevented the jury from hearing

the first part of the recording of his interview with law enforcement. During this part

of the recording, Moak was allegedly “locked in the interrogation room by himself and

was not aware that his behavior was being recorded.” (Doc. 2, p. 9.) According to

Moak, the redacted portion of the recording “clearly show[s] that he was extremely

disoriented and that his behavior was borderline psychotic during the period of time

immediately following the” murders. (Doc. 1, p. 7.)

Respondent correctly argues that Moak failed to exhaust this claim. Shortly

before trial, Moak sought to admit the “preliminary portion” of the recording, in which

he was “sitting for a period of time and . . . making statements.” (Doc. 13-7, Ex. 49,

p. 49.) Moak argued that this part of the recording supported his insanity defense. The

“preliminary portion” of the recording was ultimately removed from the tape that was

played to the jury. On direct appeal, however, Moak did not challenge the exclusion

of this portion of the recording. (Doc. 13-4, Exs. 36, 38.) Proper exhaustion requires

“state prisoners [to] give the state courts one full opportunity to resolve any

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

appellate review process.” Boerckel, 526 U.S. at 845. Because Moak failed to raise this

claim on appeal, he did not properly exhaust it.

Moak cannot return to state court to present his claim in a second, untimely

direct appeal. See Fla. R. App. P. 9.140(b)(3) (stating that a notice of appeal must be

filed within thirty days of the rendition of a sentence). As a result, Ground Two, Sub-

Claim B is procedurally defaulted. See Smith, 256 F.3d at 1138 (“If the petitioner has

failed to exhaust state remedies that are no longer available, that failure is a procedural

default which will bar federal habeas relief, unless either the cause and prejudice or the

fundamental miscarriage of justice exception is established.”). Moak does not argue

that an exception applies to overcome the default. Thus, Ground Two, Sub-Claim B

is barred from federal habeas review and affords Moak no relief.4

D. Ground Three

Moak argues that the trial court violated his due process rights by denying his

request that an insanity instruction be added to the introduction-to-homicide

instruction, which was read for each of the three counts. The trial court gave the jury

Florida’s pattern instruction on the insanity defense. (Doc. 13-7, Ex. 57, p. 677-78

(citing Fla. Std. Jury Instr. (Crim.) 3.6(a)).) But the trial court denied Moak’s request

for a special instruction—namely, that a separate reference to the insanity defense be

4 In his petition, Moak appears to suggest that his statement to law enforcement was “redacted and/or

suppressed by defense counsel.” (Doc. 1, p. 7.) To the extent that Moak seeks to raise an ineffective-

assistance claim based on this allegation, it is unexhausted because he never raised it in state court.

Because Moak cannot return to state court to present this claim in a second, untimely postconviction

motion, see Fla. R. Crim. P. 3.850(b), the claim is procedurally defaulted. Additionally, Moak does

not contend that an exception applies to overcome the default.

added to each of the three introduction-to-homicide instructions. As a result, Moak

argues, “the trial court read the insanity instruction only one time to include all three

victims, but then read the instruction for [] introduction to homicide . . . three times,

once for each victim.” (Doc. 2, p. 13.) Moak contends that the trial court’s failure “to

instruct the jury on the insanity defense after each victim deprived [him] of a fair trial

and denied him Due Process.” (Id.)

Respondent correctly argues that Moak failed to exhaust this claim. To be sure,

Moak asked the trial court to read a special insanity instruction as part of the three

introduction-to-homicide instructions. (Doc. 13-4, Exs. 25, 26, 27.) And, on direct

appeal, Moak argued that “it was an abuse of discretion for the [trial] court to deny

[his] request that the insanity defense be added to the jury instructions for Introduction

to Homicide and Manslaughter, which was read after each victim.” (Doc. 13-4, Ex.

36, p. 5.) But Moak never argued in state court that the failure to give the requested

instruction would violate the federal constitution. He did not cite any source of federal

law, and none of the Florida cases he relied on decided the jury-instruction claims on

federal grounds. (Id., p. 9 (citing Stephens v. State, 787 So. 2d 747 (Fla. 2001); Brown v.

State, 11 So. 3d 428 (Fla. 2d DCA 2009); Aumuller v. State, 944 So. 2d 1137 (Fla. 2d

DCA 2006)).) Thus, Moak failed to “make the state court aware that the [jury-

instruction] claim[] present[ed] federal constitutional issues.” Preston v. Sec’y, Fla. Dep’t

of Corr., 785 F.3d 449, 457 (11th Cir. 2015); see also Bing v. Sec’y, Fla. Dep’t of Corr., No.

8:13-cv-1449-CEH-AEP, 2016 WL 5373480, at *5 (M.D. Fla. Sept. 26, 2016) (“If

[petitioner] wanted to claim that the trial court’s jury instructions denied him the due

process of law guaranteed by the Fifth and Fourteenth Amendments, he should have

said so in his state court brief.”).

Moak cannot return to state court to present his claim in a second, untimely

direct appeal. See Fla. R. App. P. 9.140(b)(3). As a result, Ground Three is

procedurally defaulted. See Smith, 256 F.3d at 1138. Moak does not argue that an

exception applies to overcome the default. Thus, Ground Three is barred from federal

habeas review and affords Moak no relief.

E. Ground Four

Moak contends that appellate counsel was ineffective because, on direct appeal,

he failed to raise an ineffective-assistance-of-trial-counsel claim.5 The trial-level

ineffectiveness claim rests on Moak’s assertion that trial counsel had “insufficient time

to prepare for both the trial and the sentencing phases” of the case. (Doc. 1, p. 11.)

Moak alleges that his original attorney withdrew from the case shortly before trial “due

to having a large caseload.”6 (Id.) He claims that, on September 25, 2014—eleven days

before trial began—the State’s forensic psychologist (Dr. John Super) conducted a

psychological evaluation of him. Trial counsel did not receive the evaluation until

5 In Florida, claims of ineffective assistance of trial counsel are not cognizable on direct appeal unless

“(1) the ineffectiveness is apparent on the face of the record, and (2) it would be a waste of judicial

resources to require the trial court to address the issue [on postconviction review].” Robards v. State,

112 So. 3d 1256, 1266-67 (Fla. 2013).

6 The state-court record does not indicate when exactly trial counsel began representing Moak. Trial

began on October 6, 2014. Two months earlier—on August 11, 2014—trial counsel had filed an

amended notice of intention to rely upon the defense of insanity. (Doc. 13-1, Ex. 9.) This notice was

the first filing in the case that was signed by trial counsel rather than Moak’s initial counsel.

Accordingly, it appears that trial counsel began representing Moak at least two months before trial.

September 29. Then, on October 3, trial counsel deposed Dr. Super. Trial counsel did

not receive a copy of the transcript until October 6, the first day of trial. Moreover,

Moak alleges that trial counsel had only seventeen days to arrange for six witnesses to

testify on his behalf at trial. Based on these allegations, Moak contends that the

ineffectiveness of his trial counsel “should have been raised on direct appeal.” (Id.)

Moak exhausted this claim by raising it in his petition alleging ineffective

assistance of appellate counsel. (Doc. 13-7, Ex. 48, p. 5-6.) The state appellate court

summarily denied the petition in a one-sentence order.7 (Id., Ex. 49.) Where, as here,

“a state court’s decision is unaccompanied by an opinion explaining the reasons relief

has been denied,” the court presumes “that the state court adjudicated the claim on

the merits in the absence of any indication or state-law procedural principles to the

contrary.” Richter, 562 U.S. at 98-99. Thus, under Richter, Moak’s “burden is to

demonstrate that there was no reasonable basis for the decision of the [state appellate

court] to deny his claim.” Tarleton v. Sec’y, Fla. Dep’t of Corr., 5 F.4th 1278, 1291 (11th

Cir. 2021).

Moak has not met his burden. “[T]o determine whether [a petitioner] has shown

ineffective appellate counsel, [the court] must determine whether [he] has shown

underlying meritorious ineffective-trial-counsel claims.” Payne v. Allen, 539 F.3d 1297,

1314 (11th Cir. 2008). The state appellate court could reasonably have concluded that

7 “Florida law requires that an ineffective-assistance-of-appellate-counsel claim ‘be raised by petition

for writ of habeas corpus in the appellate court which considered the appeal.’” Pierre v. Dixon, No. 20-

60760-CIV, 2022 WL 3549781, at *7 (S.D. Fla. Aug. 18, 2022) (quoting Simpson v. State, 617 So. 2d

749, 749 (Fla. 1st DCA 1993)).

Moak had failed to establish an “underlying meritorious ineffective-trial-counsel

claim[].” Id. Specifically, Moak never explained what trial counsel could (or should)

have done if he had had additional time to prepare for trial. For example, Moak did

not identify any witnesses who should have been (but were not) contacted. Nor did he

point to any exculpatory evidence that could have been uncovered with additional

time to prepare. Instead, Moak listed several steps trial counsel took in the lead-up to

trial, then vaguely asserted that trial counsel was “rushed” and “not prepared.” (Doc.

13-7, Ex. 48, pp. 5-6.) The state appellate court could reasonably have found that

Moak’s conclusory allegations of inadequate preparation were insufficient to show

deficient performance or prejudice under Strickland. See McNeal v. Cosby, No. 8:04-cv-

505-EAK-EAJ, 2006 WL 314512, at *1 (M.D. Fla. Feb. 9, 2006) (holding that

petitioner had “neither shown any deficient performance nor prejudice to his trial

required under Strickland” because he failed to “describe[] [any] additional

investigation [that] should have been done” by counsel, who was appointed shortly

before trial). And because Moak failed to advance a meritorious trial-level

ineffectiveness claim, the state appellate court could reasonably have concluded that

his ineffective-assistance-of-appellate-counsel claim failed as well.

In short, Moak has failed to show that “there was no reasonable basis for the

decision of the [state appellate court] to deny his claim.” Tarleton, 5 F.4th at 1291.

Accordingly, he is not entitled to relief on Ground Four.

F. Ground Five

Moak argues that trial counsel was ineffective for failing to object to certain

remarks the prosecutor made during closing argument. Moak contends that the

prosecutor “acted as an expert witness, testifying before the jury as to what does or

does not constitute legal insanity by providing her opinion regarding [Moak’s] state of

mind at the time of the crime.” (Doc. 1, p. 13.) According to Moak, the prosecutor

“described a detailed sequence of events in which she repeatedly interjected her

opinion of specific thoughts and reasoning for deliberate actions that she assumed

[Moak] had made during the commission of the crime.” (Id.)

Respondent correctly contends that Moak failed to exhaust this claim. In his

Rule 3.850 motion for postconviction relief, Moak did not argue that trial counsel was

ineffective for failing to object to the prosecutor’s comments during closing argument.

True, in his petition alleging ineffective assistance of appellate counsel, Moak asserted

that appellate counsel was ineffective because, on direct appeal, he did not raise an

ineffective-assistance-of-trial-counsel claim concerning the failure to object to the

prosecutor’s closing argument. (Doc. 13-7, Ex. 48, pp. 7-10.) But Moak’s “ineffective

assistance of appellate counsel claim did not exhaust his claim of ineffective assistance

of trial counsel, which is the claim raised in the instant petition.” Au v. Buss, No. 2:11-

cv-103-JES-CM, 2014 WL 842446, at *11 (M.D. Fla. Mar. 4, 2014); see also Sicola v.

Dep’t of Corr., No. 8:18-cv-486-KKM-TGW, 2021 WL 9528089, at *9 (M.D. Fla. May

14, 2021) (rejecting petitioner’s argument that he exhausted ineffective-assistance-of-

trial-counsel claim by “present[ing] this ground to the state court in his state Rule

9.141(d) motion alleging ineffective assistance of appellate counsel”).

Moak cannot return to state court to present this claim in a second, untimely

postconviction motion. See Fla. R. Crim. P. 3.850(b) (imposing two-year window of

time to file motion for post-conviction relief). As a result, Ground Five is procedurally

defaulted. See Smith, 256 F.3d at 1138. Moak does not argue that an exception applies

to overcome the default. Thus, Ground Five is barred from federal habeas review and

affords Moak no relief.

Even if Moak had not defaulted this claim, he would not be entitled to relief.

Moak contends that trial counsel should have objected to the following portion of the

prosecutor’s closing argument:

He made a deliberate choice to get up out of bed and go out there. He

made a deliberate choice to return and take the gun from under his bed

and to load it. And you can use your common sense and logical

inferences from the evidence that you saw, and that box of ammo was

sitting there on his nightstand. If that gun was loaded, he didn’t need to

get that box of ammo out.

So he loaded his gun and he walked out to the lanai. Actually, he stood

in the living room. And we know that because he told us so himself. He

stood in the living room and he pointed that gun at his sister. He aimed

it, he thought about it, pulled the trigger, and he shot his sister, Renee, in

the head.

But he’s not done yet. The fight wasn’t going on when he killed Renee.

The fight was already over because he told us so himself that his dad was

at the entrance to the bedroom, standing in the doorway. And so what

does he do after he kills his sister and he sees her body slumped over in

the chair? He walks into another room and he stands there and, again, he

takes aim, pulls the trigger, and he shoots his 82-year old father in the

head and then he shoots him four more times.

He’s not finished yet. The fight’s over. There’s no more fighting going

on. What does he do? He shoots his 84-year old mother lying helpless in

her bed. He shoots her in the head, too, and then he shoots her three more

times.

Ladies and gentleman, being sad and worried about your son in

Afghanistan does not equal insanity and it doesn’t give you the license to

kill your family. Being depressed because you are dependent upon your

elderly parents for a place to live does not equal insanity and it doesn’t

give you a license to kill them because they annoy you and they wake

you up at night. And being upset because your sister is mean to you does

not give you the license to kill her and it does not equal insanity.

(Doc. 13-7, Ex. 57, pp. 692-93.)

Trial counsel was not ineffective because there was no basis to object to the

prosecutor’s comments. See Freeman v. Atty. Gen., 536 F.3d 1225, 1233 (11th Cir. 2008)

(“A lawyer cannot be deficient for failing to raise a meritless claim . . . .”). “Attorneys

are permitted wide latitude in closing argument, but that latitude does not extend to

allowing improper argument.” Silvia v. State, 60 So. 3d 959, 977 (Fla. 2011). “The

proper exercise of closing argument is to review the evidence and to explicate those

inferences which may reasonably be drawn from the evidence.” Id. Here, the

prosecutor’s description of the murders came largely from Moak’s own statement to

the police. It was a “logical inference[]” from the confession and the other evidence

presented at trial that Moak deliberately chose to retrieve the rifle from under his bed

and shoot his parents and sister. Smith v. State, 7 So. 3d 473, 509 (Fla. 2009).

Likewise, there was nothing improper about the prosecutor’s comments

regarding the insanity defense. Although a prosecutor may not “denigrate[] the

insanity defense in general,” she may “argue to the jury that based on all the facts, [a

defendant’s] reliance on an insanity defense [is] incredible.” Blaylock v. State, 537 So.

2d 1103, 1108 (Fla. 3d DCA 1988); see also Ruiz v. State, 80 So. 3d 420, 422 (Fla. 4th

DCA 2012) (“Contrary to Ruiz’s assertion, the prosecutor did not belittle Ruiz’s

insanity defense, but rather noted the substantial evidence that contradicted his

defense.”). Here, the prosecutor did not “denigrate[] the insanity defense in general.”

Blaylock, 537 So. 2d at 1108. Instead, she permissibly argued that the evidence Moak

presented at trial did not establish that he was insane at the time of the murders. See

Mignotte v. State, 576 So. 2d 809, 811 (Fla. 3d DCA 1991) (holding that “prosecutor’s

remarks did not constitute an impermissible denigration of the insanity defense”

because prosecutor merely argued that “in this case, the defense was inapplicable”

(emphasis omitted)); see also Patton v. State, 878 So. 2d 368, 375 (Fla. 2004) (“[A]

defendant can be found not guilty by reason of insanity if he or she commits an

unlawful act, but by reason of a mental infirmity, disease, or defect is unable to

understand the nature and quality of his or her act, or its consequences, or is incapable

of distinguishing right from wrong at the time of the incident.”).8

G. Ground Six

Moak argues that trial counsel was ineffective for “proceed[ing] to trial without

securing a psychiatrist or other such expert to assist in the defense at trial.” (Doc. 1, p.

8 Moak appears to raise a new claim in his reply, arguing that trial counsel was ineffective for waiving

closing argument. (Doc. 14, p. 3.) Moak “cannot bring new claims in his reply.” Grant v. Sec’y, Dep’t

of Corr., No. 8:16-cv-1978-WFJ-SPF, 2019 WL 3718673, at *12 (M.D. Fla. Aug. 7, 2019) (collecting

cases). In any event, Moak failed to exhaust this claim, which is now procedurally defaulted because

he cannot return to state court to present it in a second, untimely postconviction motion. See Fla. R.

Crim. P. 3.850(b). Moreover, Moak does not argue that an exception applies to overcome the default.

14.) According to Moak, trial counsel’s failure to retain such an expert “denied [him]

a fair trial” because “there was no witness to refute the testimony of the State[’]s

expert.” (Id.)

As Respondent correctly notes, Moak did not exhaust this claim. In his Rule

3.850 motion for postconviction relief, Moak did not argue that trial counsel was

ineffective for failing to retain a psychiatric expert. Nor did he raise this claim on

appeal from the order denying his motion for postconviction relief. Moak cannot

return to state court to present this claim in a second, untimely postconviction motion.

See Fla. R. Crim. P. 3.850(b). As a result, Ground Six is procedurally defaulted. See

Smith, 256 F.3d at 1138. Moak does not argue that an exception applies to overcome

the default. Thus, Ground Six is barred from federal habeas review and affords Moak

no relief.

It is therefore ORDERED that Moak’s petition (Doc. 1) is DENIED. The

CLERK is directed to enter judgment against Moak and to CLOSE this case.

Certificate of Appealability

and Leave to Appeal In Forma Pauperis Denied

It is further ORDERED that Moak is not entitled to a certificate of appealability

(“COA”). A prisoner seeking a writ of habeas corpus has no absolute entitlement to

appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a COA

must first issue. Id. “A [COA] may issue . . . only if the applicant has made a substantial

showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To obtain a COA,

Moak must show that reasonable jurists would find debatable both (1) the merits of

the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Moak has not made the

requisite showing. Finally, because Moak is not entitled to a COA, he is not entitled

to appeal in forma pauperis.

ORDERED in Tampa, Florida, on February 7, 2023.

fina 9. Meany (nny

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

33