# Morgan v. Secretary, Florida Department of Corrections (Nassau County)

> District Court, M.D. Florida · February 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10112181

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 28, 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/10112181

## How later opinions describe it (automated extraction)

- noting “that Boerckel applies to the state collateral review process as well as the direct appeal process.”
- noting “that Boerckel applies to the state collateral review process as well as the direct appeal process.”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

CHRIS MORGAN,

Petitioner,

v. Case No. 3:20-cv-272-TJC-PDB

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,

Respondents.
________________________________

ORDER
I. Status
Petitioner, an inmate of the Florida penal system, is proceeding on a pro
se Amended Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc.
9). He challenges a 2016 state court (Duval County, Florida) judgment of
conviction for aggravated fleeing or attempting to elude a law enforcement
officer. He is serving a 30-year term of imprisonment as a habitual felony
offender (HFO). Respondents filed a Response (Doc. 14) with exhibits (Docs. 7-
1 to 7-9; Ex.). Petitioner filed a Reply (Doc. 17). This case is ripe for review.1

1 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need
for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318
(11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th
Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court must
II. Governing Legal Principles
A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal habeas corpus petition. See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
ne2016). “‘The purpose of AEDPA is to ensure that federal habeas relief

functions as a guard against extreme malfunctions in the state criminal justice
systems, and not as a means of error correction.’” Id. (quoting Greene v. Fisher,
565 U.S. 34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims on the merits. See
Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue an opinion explaining its rationale for the state court’s
decision to qualify as an adjudication on the merits. See Harrington v. Richter,

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

consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the
record refutes the applicant’s factual allegations or otherwise precludes habeas relief,
a district court is not required to hold an evidentiary hearing.” Id. The Court finds that
“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.
the federal court should “look through” the unexplained
decision to the last related state-court decision that
does provide a relevant rationale. It should then
presume that the unexplained decision adopted the
same reasoning. But the State may rebut the
presumption by showing that the unexplained
affirmance relied or most likely did rely on different
grounds than the lower state court’s decision, such as
alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the
record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner’s claims on the merits, a
federal court cannot grant habeas relief unless the state court’s adjudication of
the claim was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” or “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),
(2). A state court’s factual findings are “presumed to be correct” unless rebutted
“by clear and convincing evidence.” Id. § 2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that
state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal
quotation marks omitted). “A state court’s
determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court’s
decision.” Richter, 562 U.S. at 101 (internal quotation
marks omitted). “It bears repeating that even a strong
case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. [at 102] (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The
Supreme Court has repeatedly instructed lower federal
courts that an unreasonable application of law requires
more than mere error or even clear error. See, e.g.,
Mitchell v. Esparza, 540 U.S. 12, 18 (2003); Lockyer,
538 U.S. at 75 (“The gloss of clear error fails to give
proper deference to state courts by conflating error
(even clear error) with unreasonableness.”); Williams v.
Taylor, 529 U.S. 362, 410 (2000) (“[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal
citations modified).
B. Exhaustion and Procedural Default
There are prerequisites to federal habeas review. Before bringing a § 2254
habeas action in federal court, a petitioner must exhaust all state court
remedies that are available for challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”
every issue raised in his federal petition to the state’s highest court, either on
direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351
(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners
must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope
v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the
state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28
U.S.C. § 2254(b)(1), thereby giving the State the
“‘opportunity to pass upon and correct’ alleged
violations of its prisoners’ federal rights.” Duncan v.
Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting
Picard v. Connor, 404 U.S. 270, 275 (1971)). To provide
the State with the necessary “opportunity,” the
prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Duncan, 513 U.S. at 365-66; O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citations modified).
A state prisoner’s failure to properly exhaust available state remedies
results in a procedural default which raises a potential bar to federal habeas
review. The United States Supreme Court has explained the doctrine of
procedural default as follows:
Federal habeas courts reviewing the constitutionality
of a state prisoner’s conviction and sentence are guided
by rules designed to ensure that state-court judgments
are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our
system of federalism. These rules include the doctrine
of procedural default, under which a federal court will
not review the merits of claims, including
constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state
procedural rule. See, e.g., Coleman, 501 U.S. at 747-48;
Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977). A state
court’s invocation of a procedural rule to deny a
prisoner’s claims precludes federal review of the claims
if, among other requisites, the state procedural rule is
a nonfederal ground adequate to support the judgment
and the rule is firmly established and consistently
followed. See, e.g., Walker v. Martin, 131 S. Ct. 1120,
1127-28 (2011); Beard v. Kindler, 130 S. Ct. 612, 617-
18 (2009). The doctrine barring procedurally defaulted
claims from being heard is not without exceptions. A
prisoner may obtain federal review of a defaulted claim
by showing cause for the default and prejudice from a
violation of federal law. See Coleman, 501 U.S. at 750.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012) (internal citations modified). Thus,
procedural defaults may be excused under certain circumstances.
Notwithstanding that a claim has been procedurally defaulted, a federal court
may still consider the claim if a state habeas petitioner can show either (1) cause
for and actual prejudice from the default; or (2) a fundamental miscarriage of
justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). For a petitioner to
establish cause and prejudice,
the procedural default “must result from some objective
factor external to the defense that prevented [him] from
raising the claim and which cannot be fairly
attributable to his own conduct.” McCoy v. Newsome,
953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Murray
v. Carrier, 477 U.S. 478, 488 (1986). Under the
prejudice prong, [a petitioner] must show that “the
errors at trial actually and substantially disadvantaged
his defense so that he was denied fundamental
fairness.” Id. at 1261 (quoting Carrier, 477 U.S. at 494).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (internal citations
modified).

In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the
petitioner can establish that a fundamental miscarriage of justice, the
continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive
consideration on the merits of his procedurally
defaulted claim. “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal
habeas court may grant the writ even in the absence of
a showing of cause for the procedural default.” Carrier,
477 U.S. at 496. “This exception is exceedingly narrow
in scope,” however, and requires proof of actual
innocence, not just legal innocence. Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.3d at 1157 (internal citations modified). “To meet this standard, a
petitioner must ‘show that it is more likely than not that no reasonable juror
would have convicted him’ of the underlying offense.” Johnson v. Alabama, 256
F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)). Additionally, “‘[t]o be credible,’ a claim of actual innocence must be
based on reliable evidence not presented at trial.” Calderon v. Thompson, 523
U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity of such
evidence, in most cases, allegations of actual innocence are ultimately
summarily rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Counsel
“The Sixth Amendment guarantees criminal defendants the effective
assistance of counsel. That right is denied when a defense attorney’s
performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)
(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington,
466 U.S. 668, 687 (1984)). Courts employ a two-part test when reviewing
ineffective assistance of counsel claims. See Strickland, 466 U.S. at 687.

To establish deficient performance, a person
challenging a conviction must show that “counsel’s
representation fell below an objective standard of
reasonableness.” 466 U.S. at 688. A court considering
a claim of ineffective assistance must apply a “strong
presumption” that counsel’s representation was
within the “wide range” of reasonable professional
assistance. Id. at 689. The challenger’s burden is to
show “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687.

With respect to prejudice, a challenger must
demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. It is not enough
“to show that the errors had some conceivable effect on
the outcome of the proceeding.” Id. at 693. Counsel’s
errors must be “so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at
687.

Richter, 562 U.S. at 104 (internal citations modified).
There is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward, 592 F.3d at 1163. Both prongs of the
two-part Strickland test must be satisfied to show a Sixth Amendment
violation; thus, “a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing Holladay
v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.” Strickland, 466 U.S. at
697.
A state court’s adjudication of an ineffectiveness claim is afforded great

deference.
“[T]he standard for judging counsel’s representation is
a most deferential one.” Richter, 562 U.S. at 105. But
“[e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland
and § 2254(d) are both highly deferential, and when
the two apply in tandem, review is doubly so.” Id.
(citations and quotation marks omitted). “The
question is not whether a federal court believes the
state court’s determination under the Strickland
standard was incorrect but whether that
determination was unreasonable - a substantially
higher threshold.” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009) (quotation marks omitted). If there is
“any reasonable argument that counsel satisfied
Strickland’s deferential standard,” then a federal
court may not disturb a state-court decision denying
the claim. Richter, 562 U.S. at 105.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (internal
citations modified). In other words, “[i]n addition to the deference to counsel’s
performance mandated by Strickland, the AEDPA adds another layer of
deference--this one to a state court’s decision--when we are considering whether
to grant federal habeas relief from a state court’s decision.” Rutherford v.
Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such, “[s]urmounting
Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,
371 (2010).
III. Procedural History
The following summary of the trial is taken from Petitioner’s brief on

direct appeal:
Deputy Schmidt stopped a vehicle for a cracked
windshield and an obscured tag. He made contact with
the driver, whom he identified as [Petitioner]. He was
given a Florida driver’s license. Schmidt ran the
license in the Florida driver and vehicle information
database and confirmed it was an actual valid driver’s
license. He took possession of the driver’s license. The
license was placed in evidence, but was not introduced
at trial. Schmidt had a brief conversation with the
driver: “at least 45 seconds maybe to two minutes,
maybe a little over two minutes, give or take.” Schmidt
returned to his car and ran the license and registration
through his computer system. Over objection, he
testified that another picture of [Petitioner] pulled up
on his screen. He was able to confirm that it was
[Petitioner]. He called for a backup officer. Once he
arrived, they called for [Petitioner] to come back to
them. [Petitioner] drove away and there was a twelve
mile pursuit. The in-car video was played. The pursuit
was then cancelled. The backup officer passed directly
in front of the driver of the car.

During closing arguments, the defense argued
that there was a lack of evidence. Counsel argued that
the backup officer was not called to identify
[Petitioner], DMV records were not introduced to
confirm that the vehicle belonged to [Petitioner] or his
daughter, and the driver’s license was not introduced.

Without objection, the state argued that if
another officer testified, the defense would have found
a problem with the angle the officer drove in and didn’t
get a really good look at him. The state argued there
was no need for the jury to have the driver’s license in
front of them since the deputy triple checked the
identification by physically looking at the driver’s
license.

The jury asked a question of where was the
driver’s license. The court did not answer the question.

The jury returned a verdict finding [Petitioner]
guilty. [Petitioner] was sentenced to thirty years as an
[HFO].

Ex. C. at 2-3 (internal record citations omitted).
On direct appeal, Petitioner, through appellate counsel, raised two
arguments: (1) he was “denied a fundamentally fair trial by prosecutorial
misconduct during closing;” and (2) “[t]he trial court erred in overruling [his]
objection to the testimony of Deputy Schmidt that his computer displayed
[Petitioner’s] photograph when he ran the license.” Id. at i. Notably, Petitioner
did not cite to or address any federal law in his brief. The state filed an answer

brief. Ex. D. The First District Court of Appeal per curiam affirmed Petitioner’s
judgment of conviction without a written opinion. Ex. E.
Petitioner then filed a motion for postconviction relief pursuant to Florida
Rule of Criminal Procedure 3.850. Ex. F at 3-70. He raised the following claims:

(1) he was denied due process under the United States Constitution by the trial
court’s refusal to utilize the proposed supplemental jury instruction; (2) his trial
counsel was ineffective under the United States Constitution by failing to object
to the trial court’s use of the standard jury instruction instead of his proposed

“good faith mistake supplemental instruction”; (3) he was denied due process
under the United States Constitution when the state bolstered Deputy
Schmidt’s testimony during closing argument by referring to evidence not
introduced into the record; (4) his trial counsel was ineffective under the United

States Constitution by failing to object to the state bolstering Deputy Schmidt’s
testimony during closing argument; (5) he was denied due process under the
United States Constitution when the trial court allowed the prosecutor to
continually invade the province of the jury over his counsel’s objections. Ex. F

at 9-32. The state court summarily denied Petitioner’s claims. Id. at 71-255.
Petitioner appealed, and the First DCA per curiam affirmed the denial of
Petitioner’s postconviction motion. Ex. I. This case followed.

IV. Analysis
A. Ground One

According to Petitioner, his trial counsel was ineffective in handling his
requested special jury instruction and he was denied due process and a fair trial
by the trial court’s failure to provide a special but necessary jury instruction.
Doc. 9 at 5; Doc. 10 at 2. He contends that his counsel failed to explain to the
trial court “why the standard instruction given did not convey to the jury the
key point of the special instruction—“that a [state] witness could make a

mistake in identifying Petitioner without lying. (Good Faith).” Doc. 10 at 2. He
also asserts that trial counsel failed to alert the state court to the federal nature
of this claim. Id. at 2-3.
Insofar as Petitioner raises the same ineffectiveness claim that he did in

his Rule 3.850 motion, the Court defers to the state court’s adjudication of that
claim. In denying Petitioner’s Rule 3.850 motion, the state court found that
“Defense Counsel was not deficient at the trial stage because he made every
good faith effort to allow the jury to hear Defendant’s proposed special

instruction.” Ex. F at 74. The First DCA per curiam affirmed the denial without
issuing a written opinion. Ex. I. Upon thorough review of the record, this Court
concludes that the state court’s adjudication was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable determination

of the facts in light of the evidence presented.
Petitioner, however, asserts that he did not raise the same ineffectiveness
claim in state court and he asks this Court to consider the claim under the
exception outlined in Martinez, 566 U.S. at 1. In Martinez, the Supreme Court

recognized a narrow exception to the rule that an attorney’s error in a
postconviction proceeding does not constitute cause for a procedural default:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-
review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in
the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.

Id. at 17. To establish cause under Martinez, Petitioner must demonstrate that
the defaulted ineffective assistance of trial counsel claim “is a substantial one,
which is to say that [he] must demonstrate that the claim has some merit.” Id.
at 14; see also Lambrix v. Sec’y Fla. Dept. of Corr., 851 F.3d 1158, 1164 (11th
Cir. 2017). A claim is not substantial if it lacks merit or is wholly without factual
support. See Martinez, 566 U.S. at 15-16.
Before trial, Petitioner’s counsel filed a proposed special jury instruction
on eyewitness identification. Ex. A at 25. The special instruction requested was
based on a 1998 case from the Supreme Court of Massachusetts. Id. The
proposed instruction stated:

Identification testimony is an expression of
opinion or impression by the witness. In deciding
whether or not to believe a witness who identifies the
defendant, remember that you must consider not only
whether the witness is telling the truth or is lying. You
must also consider the possibility of a “good faith
mistake.”

Id. During a pretrial hearing on July 14, 2016, the state court heard argument
on the proposed instruction. Id. at 108-12. The state argued that the special
instruction was unnecessary because the standard jury instructions sufficiently
cover eyewitness identifications. Id. at 111. Petitioner’s counsel responded:
[The standard instructions] do not address what the
issue here is, that it’s simply that there could, in fact,
be a good faith mistake. It’s alerting the jury that it’s
not a matter of whether a witness - - the only two
options for not telling the truth are lying, that
someone could be telling what they believe to be the
truth and still be mistaken, and it is - - it has been
recognized by the [Supreme Court of Massachusetts].

Id. The state court denied Petitioner’s request to have that instruction read to
the jury. Id. at 112.
Petitioner now asserts that his trial counsel “failed to explain to the Court
why the standard instruction given did not convey to the jury the key point of
the special instruction – “that a [state] witness could make a mistake in
identifying Petitioner without lying,” and that “counsel failed to present the
state court’s with the federal constitutional violations not just the state law or
rule violations.” Doc. 10 at 2. To the extent Petitioner raises a different claim

than he did in his Rule 3.850 proceeding, this Court finds Petitioner’s
ineffectiveness claim in Ground One to be insubstantial. His trial counsel
presented the proposed instruction to the state court and argued that the
standard instructions did not cover whether a witness made a “good faith

mistake.” Counsel essentially made the argument that Petitioner claims he
should have made, and the state court denied the request. Moreover, during
closing argument, trial counsel argued: “The Judge is going to give you an
instruction about eyewitness identification, because at the end of the day,

whether [Deputy Schmidt’s] wearing a badge or not, he’s still a human being.
Deputy Schmidt is a flesh and blood human being capable of mistakes.” Id. at
98. Petitioner’s trial counsel was not ineffective in the manner Petitioner
suggests.

The Court further finds that trial counsel’s failure to raise the federal
constitutional nature of this claim did not render counsel ineffective.
Regardless, Petitioner fails to show prejudice. He has not shown that but for his
counsel’s alleged failures in Ground One, the outcome of the proceeding would

have been different. Thus, Petitioner’s ineffective assistance of counsel claim is
not substantial and due to be denied.
To the extent Petitioner seeks to raise a trial court error claim regarding
the instruction, such claim is procedurally barred. As Petitioner recognizes, he

did not raise any such claim on direct appeal. Petitioner has shown neither
cause nor prejudice resulting from the procedural bar, and he fails to
demonstrate a fundamental miscarriage of justice would result if this claim
were not addressed. Regardless, “[s]tate court jury instructions ordinarily

comprise issues of state law and are not subject to federal habeas corpus review
absent fundamental unfairness.” Jones v. Kemp, 794 F.2d 1536, 1540 (11th Cir.
1986). To establish fundamental unfairness, the petitioner must demonstrate
“the error ‘so infected the entire trial that the resulting conviction violates due

process.’” Jacobs v. Singletary, 952 F.2d 1282, 1290 (11th Cir. 1992) (quoting
Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). “An omission, or an incomplete
instruction, is less likely to be prejudicial than a misstatement of the law.”
Henderson, 431 U.S. at 155. In such cases, the burden on the petitioner is

“especially heavy.” Id. Here, the trial court’s decision to reject this special
instruction did not render Petitioner’s trial fundamentally unfair. Accordingly,
Ground One is due to be denied.
B. Ground Two

Petitioner asserts that trial counsel was ineffective for failing to object to
the improper bolstering of the state’s star witness during the state’s closing
argument. Doc. 9 at 7; Doc. 10 at 4. He also argues that the trial court erred by
permitting “this bolstering which was highly improper[,] . . . a clear due process
violation and violative of the right to a fair jury trial and confrontation.” Doc.

10 at 5; Doc. 9 at 7.
Insofar as Petitioner raises the same ineffectiveness claim here that he
did in his Rule 3.850 motion, the state court’s decision is entitled to deference.
Indeed, the state court, after identifying Strickland as the controlling precedent

for ineffective assistance of counsel claims, denied the claim as follows:
In Ground Four of his motion, Defendant claims
that his attorney was ineffective for failing to object
when the State allegedly bolstered witness testimony
during its closing argument to the jury. Stated
differently, Defendant argues that his attorney was
ineffective because he failed to object to the portion of
the State’s closing argument [in which the State
argued:

Well, Deputy Schmidt essentially
triple checked the ID. He makes contact
with him, he gets his driver’s license,
confirms that the driver’s license in his
hand is Chris Morgan, then he has a
relatively lengthy conversation with him
about what he’s doing, where’s going, why
he was stopped, that it was potentially
around a minute long face-to-face with
this man, then he goes back to his patrol
car, runs the license again, which pulls up
another photo, which he then confirms
again is this defendant, Chris Morgan. It
cannot be more clear of a confirmation of
an ID than this deputy went about doing
it.]
Defense counsel had no basis to object to the
State’s closing argument. The State’s closing
argument was a fair comment on the evidence adduced
at trial, including Deputy Schmidt’s testimony.
Because there was no legal basis for Defense Counsel
to object in the manner described by Defendant, it is
axiomatic that Defense Counsel did not perform
deficiently.

Ex. F at 72, 74-76 (internal citations omitted). Petitioner appealed, and the
First DCA per curiam affirmed the denial without a written opinion. Ex. I.
This Court addresses Petitioner’s claim in accordance with the deferential
standard for federal court review of state court adjudications. Upon thorough
review of the record, this Court concludes that the state court’s adjudication of
this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence
presented. Accordingly, this ineffectiveness claim is due to be denied.
Petitioner argues that the state court’s decision is not entitled to
deference because he did not present the federal nature of the claim to the state
courts. See Doc. 17 at 4 (“[T]he state court rulings did not factor in the claim
presented to the federal court which involves the failure to even present the
federal constitutional claims to the state court.”). Petitioner contends that in
his Rule 3.850 proceeding, “[h]e failed . . . to explain that it was a federal due
process violation, not merely a state law violation.” Doc. 10 at 5.
Even assuming the state court’s decision is not entitled to deference,
Petitioner’s claim has no merit. Petitioner argues that his trial counsel’s failure

to object to the state’s comments violated his federal constitutional right to due
process, a fair trial, and “confrontation.” However, a review of the record shows
that Petitioner has shown neither deficient performance nor resulting
prejudice. Thus, his ineffectiveness claim is due to be denied.

As to Petitioner’s contention that the trial court erred by denying him a
fair trial based on the state’s alleged improper bolstering, he raised a similar
claim on direct appeal but he failed to present the federal nature of the claim.2
Thus, as Petitioner recognizes, this claim is procedurally barred. Petitioner has

shown neither cause nor prejudice resulting from the procedural bar, and he
fails to demonstrate a fundamental miscarriage of justice would result if this
claim were not addressed. Regardless, considering the trial transcript on the
whole, the Court finds that the state’s comments during closing argument did

not render Petitioner’s trial fundamentally unfair, or “so infect[] the trial with
unfairness as to make the resulting conviction a denial of due process.” Darden
v. Wainwright, 477 U.S. 168, 181 (1986). Petitioner’s claim is due to be denied.

2 In its answer brief, the state discussed the United States Supreme Court’s decision
in Darden v. Wainwright, 477 U.S. 168 (1986). See Ex. D at 9-12.
C. Ground Three
Petitioner argues that he was denied a fair trial and due process because

the state’s witness was permitted to testify and refer to evidence (Petitioner’s
driver’s license and photograph displayed in the officer’s vehicle) not before the
court, and he was allowed to make an identification of Petitioner through that
evidence. Doc. 9 at 8; Doc. 10 at 6. He further asserts that trial counsel was

ineffective for not objecting properly to these matters. Doc. 9 at 8; Doc. 10 at 6.
According to Petitioner, his conviction rests solely on the testimony of one police
officer, and had his counsel properly objected to the testimony, the testimony
would have been excluded. Doc. 10 at 6.

Petitioner did not exhaust the ineffectiveness claim that he now seeks to
raise. Instead, he asks the Court to rule on the claim under the exception
outlined in Martinez. Petitioner, however, fails to show this claim is
“substantial,” thus the Court finds this claim is unexhausted and procedurally

barred.
Petitioner’s trial counsel was not ineffective for failing to object to Deputy
Schmidt’s testimony about what occurred during the traffic stop. Deputy
Schmidt testified that after he initiated the traffic stop, he spoke with

Petitioner, who was driving the vehicle, for approximately 45 seconds to 2
minutes. Ex. B at 67-68. Deputy Schmidt identified Petitioner in the courtroom
as the driver of the vehicle that fled. Id. at 66. He also confirmed that Petitioner
provided a driver’s license, and Deputy Schmidt ran it through the Florida
driver and vehicle information database to confirm it was a valid license. Id.

Further, Deputy Schmidt testified that while running Petitioner’s driver’s
license and registration, his computer system pulled up another photo of
Petitioner. Id. at 68-69. Petitioner now claims that his counsel was ineffective
for failing to object to Deputy Schmidt’s testimony regarding Petitioner’s

driver’s license and photograph that showed on his computer screen while
running Petitioner’s license.
Regardless of this alleged objectionable testimony, Deputy Schmidt
conversed with Petitioner for 45 seconds to 2 minutes during the traffic stop,

and Deputy Schmidt identified Petitioner in the courtroom as the driver of the
vehicle. And trial counsel used the state’s failure to enter the license and
photograph into evidence as part of Petitioner’s trial strategy. During opening
statements, trial counsel focused on the “lack of evidence.” Ex. B at 62 (“[T]his

case is going to be defined by a lack of evidence, the things they can’t show you,
the things that you are not going to see, the evidence you are not going to hear,
the things that will not be presented here today.”). Likewise, during closing
arguments, trial counsel argued about the lack of evidence corroborating

Deputy Schmidt’s testimony, including the state’s failure to introduce the
driver’s license:
[Deputy Schmidt] says the driver hands him the
driver’s license, he takes it back, he runs it through
DMV, he does all this checking. And I said, And you
kept the license; didn’t you? You held on to it? Yes, I
did. Did you give it back to the driver? No, I didn’t.
Okay. Where is it? Did the State offer you any evidence
today of that driver’s license? This officer is claiming
that’s where he made his ID, or helped him make his
ID, this license. Have you seen it? I haven’t seen it. We
haven’t seen it. Where is it? No license equals not
guilty. It’s just that simple. No license, not guilty.

Id. at 97-98. Considering the record, the Court finds that Petitioner fails to show
his counsel’s actions amounted to ineffective assistance. But even assuming
deficient performance, Petitioner fails to show prejudice. He has not shown a
reasonable probability that but for counsel’s alleged ineffectiveness, the result
of the proceeding would have been different. Thus, this claim is not substantial
and due to be denied.
To the extent Petitioner raises the same trial court error claim that he
did on direct appeal, the First DCA per curiam affirmed his judgment of
conviction without issuing a written opinion. Upon thorough review of the
record, this Court concludes that the state court’s adjudication was not contrary
to clearly established federal law, did not involve an unreasonable application
of clearly established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented.
Petitioner’s attempt to raise a different trial court error claim regarding
the admission of Deputy Schmidt’s testimony is unexhausted and procedurally
barred. Petitioner has shown neither cause nor prejudice resulting from the
procedural bar, and he fails to demonstrate a fundamental miscarriage of

justice would result if this claim were not addressed. Regardless, such a claim
is without merit in light of the record. Ground Three is due to be denied.
D. Ground Four
According to Petitioner, he was “denied a favorable plea agreement where

he rejected it on the basis of an unreasonable recommendation” and his trial
counsel was ineffective “for recommending Petitioner reject this offer.” Doc. 9 at
10. Petitioner acknowledges that at the time he rejected the state’s second plea
offer of 15-years imprisonment, “he knew he was facing a possible 30 year

sentence as an [HFO].” Doc. 10 at 10. Petitioner contends that his counsel
recommended rejecting the offer “because his trial prospects were so favorable,”
id., even though counsel knew of the state’s evidence which left “about a zero
chance that Petitioner would be convicted of anything less than the charged

conduct,” Doc. 17 at 8.
Respondents contend that this claim is untimely because it does not
“relate back” to the original Petition. See Doc. 14 at 39-41. Alternatively,
Respondents address the claim on the merits. See id. at 41-43. In response,

Petitioner contends that Respondents waived the untimeliness argument, but
if the Court finds the claim is untimely, Petitioner requests that the Court use
its “discretion under its equitable powers” to hear the claim. Doc. 17 at 8-11.
Regardless of whether Respondents waived the untimeliness argument,
Petitioner failed to raise this claim in state court and thus, it is unexhausted

and procedurally barred. He argues that the Court should hear the
ineffectiveness claim under the exception outlined in Martinez, but the Court
finds Petitioner’s underlying ineffective assistance of trial counsel claim with
respect to the rejection of a plea offer is not substantial.

Even assuming trial counsel was deficient as alleged by Petitioner,
Petitioner has not shown prejudice. In the context of a rejected plea offer, the
prejudice prong requires the movant to show “a reasonable probability that but
for counsel’s ineffectiveness: (1) ‘the plea offer would have been presented to the

court (i.e., that the defendant would have accepted the plea and the prosecution
would not have withdrawn it in light of intervening circumstances)’; (2) ‘the
court would have accepted its terms’; and (3) ‘the conviction or sentence, or both,
under the offer’s terms would have been less severe than under the judgment

and sentence that in fact were imposed.’” Osley v. United States, 751 F.3d 1214,
1222 (11th Cir. 2014) (quoting Lafler v. Cooper, 566 U.S. 156, 164 (2012)). But
“after the fact testimony concerning [the movant’s] desire to plead, without
more, is insufficient to establish that but for counsel’s alleged advice or inaction,

he would have accepted the plea offer.” Diaz v. United States, 930 F.2d 832, 835
(11th Cir. 1991).
Here, during the sentencing hearing, when the trial court asked defense
counsel what he believed a reasonable sentence would be, defense counsel

stated:
Your Honor, I know at one point we had offered
the State where Mr. Morgan was going to resolve his
case for 12 years in Florida State Prison. That was the
last offer that we made. We believed all along that the
10 - - 10 years we thought was reasonable, we had
offered that, and my client even went above that in a
good faith attempt to try to negotiate a disposition
with the State prior to trial and stepped above the 10
and he had most recently offered 12. So it’s always
been our belief that that would be a reasonable, just
sentence in this case.

Ex. A at 121-22. Petitioner’s current after-the-fact assertions that he would
have accepted a 15-year plea deal are unsupported especially considering trial
counsel’s statements at the sentencing hearing. While Petitioner apparently
had expressed a desire to plead, the maximum amount of time he wished to
plead to was 12 years—not the state’s alleged 15-year offer. And in rejecting the
state’s alleged 15-year offer, Petitioner knew he was facing a possible 30-year
sentence as an HFO. See Doc. 10 at 10. Thus, he fails to demonstrate a
reasonable probability that he would have accepted the State’s plea offer but for
his counsel’s alleged advice to reject it.
Additionally, during the sentencing hearing, the trial court detailed
Petitioner’s “lengthy criminal history” and found it was “more than appropriate
that [Petitioner] be sentenced as an [HFO].” Ex. A at 122-23. Petitioner has not
shown the trial court would have accepted a 15-year plea deal. Because
Petitioner fails to show his underlying ineffectiveness claim is substantial,

Ground Four is due to be denied.
In light of the foregoing, it is
ORDERED:
1. The Amended Petition (Doc. 9) is DENIED, and this case is

DISMISSED WITH PREJUDICE.
2. If Petitioner appeals, the Court denies a certificate of appealability.
Because the Court has determined that a certificate of appealability is not
warranted, the Clerk shall terminate from the pending motions report any

motion to proceed on appeal as a pauper that may be filed in this case. Such
termination shall serve as a denial of the motion.3

3 The Court should issue a certificate of appealability only if the Petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make this substantial showing, Petitioner “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration
of the record as a whole, the Court will deny a certificate of appealability.
3. The Clerk shall enter judgment dismissing this case with
prejudice, terminate any pending motions, and close the file.
DONE AND ORDERED at Jacksonville, Florida, this 28 day of
February, 2023.

o> Cmothe I. Corrigan
Ww. TIMOTHY J. CORRIGAN
United States District Judge

JAX-3 2/13
C:
Chris Morgan, #294300
Counsel of Record

28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112181. Public record. Not legal advice.