# Moak v. Secretary, Department of Corrections

> District Court, M.D. Florida · February 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10112098

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10112098

## How later opinions describe it (automated extraction)

- stating that this doubly deferential standard of review “gives both the state court and the defense attorney the benefit of the doubt”
- 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”
- holding that, after invoking “his right to counsel,” defendant “initiated further conversation by inquiring ‘well, what do you want, anyway?’”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112098. Public record. Not legal advice.