Bowen v. Secretary, Department of Corrections (Hillsborough County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

AKEEM RYAN BOWEN,

Petitioner,

v. Case No. 8:20-cv-281-VMC-TGW

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

Akeem Ryan Bowen, a Florida prisoner, timely filed a pro se petition for writ of

habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) Respondent filed a response opposing

the petition. (Doc. 8.) Bowen filed a reply. (Doc. 12.) Upon consideration, the petition

is DENIED.

I. Procedural History

A state-court jury convicted Bowen of armed burglary of a dwelling and grand

theft. (Doc. 9-2, Ex. 1, pp. 138-39.) After finding that he qualified as a prison releasee

reoffender, the state trial court sentenced Bowen to concurrent terms of life

imprisonment on the burglary count and five years’ imprisonment on the grand-theft

count. (Id., pp. 160, 164.) The state appellate court per curiam affirmed the convictions

and sentences. (Doc. 9-3, Ex. 5.) Bowen then sought postconviction relief under

Florida Rule of Criminal Procedure 3.850. (Doc. 9-4, Ex. 11, pp. 22-43, 48-66.) The

state trial court denied Bowen’s claims, and the state appellate court per curiam

affirmed the denial of relief. (Id., pp. 68-77, 205-11; Doc. 9-5, Ex. 14.) Bowen also filed

a petition alleging ineffective assistance of appellate counsel under Florida Rule of

Appellate Procedure 9.141(d). (Doc. 9-3, Ex. 9.) The state appellate court denied

Bowen’s petition. (Id., Ex. 10.)

II. Facts; Trial Testimony1

On the evening of December 18, 2013, Aleister Campbell came home from

work to find that his house had been burglarized. Campbell shared the house with his

girlfriend, Kathyrn Valentine. The burglar had entered by breaking the glass on the

rear sliding door. Several items were missing when Campbell came home, including a

Glock handgun, a Canon Rebel T3i camera, a Discover credit card, and various items

of jewelry. The couple’s “main” television had been removed from the house and left

in the backyard. (Doc. 9-2, Ex. 1c, p. 119.) Campbell called 911, and the police began

to investigate.

The next day, Valentine learned that someone had tried to use her credit card

at a nearby Publix supermarket and Marathon gas station. Police recovered

surveillance footage from those two locations. The Publix footage showed a man and

woman entering the store, walking to the self-checkout area, and attempting to buy a

box of Oreo minis with the stolen credit card. When the transaction was declined, the

pair returned the item and left the store. The footage from the Marathon gas station

1 This summary is based on the trial transcript.

showed a woman attempting to purchase gas with the stolen credit card. She was

wearing what appeared to be the same clothing as the woman at the Publix.

Based on the videos and other investigative work, Detective James Bowie

identified Bowen and his girlfriend Dosha Marshall as suspects. The two shared an

apartment in Temple Terrace near the burglarized residence, the Publix, and the

Marathon gas station. On January 6, 2014, police arrested Bowen and searched his

apartment. During the search, police found the Glock handgun that had been taken

from Campbell and Valentine’s house.

Before the search warrant was executed, Detective Bowie had begun to

interview Bowen at the police station. After Detective Bowie read Bowen his Miranda2

rights, Bowen invoked his right to counsel. The interview ended, and Bowen was taken

to a holding area. Later that day, an officer informed Sgt. Michael Hutner that Bowen

“wanted to have a conversation with” Sgt. Hutner. (Id., p. 216.) Sgt. Hutner confirmed

with Bowen that the latter was “initiating this conversation,” that he “still

underst[ood] [his] rights,” and that he wished to talk to Sgt. Hutner. (Id., p. 219.)

Bowen began the interrogation by denying any involvement in the burglary. He

admitted that he and Marshall had tried to use the stolen credit card at the Publix.

Bowen claimed, however, that he had bought the card from a man named Jamie.

Bowen also said that Jamie had sold him the Glock. Later in the interrogation, Sgt.

Hutner mentioned that Marshall was “looking at [a] bunch of charges too,” including

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

possession of stolen property. (Id., pp. 230-31.) At this point, Bowen admitted to the

burglary. He said he had “smashed” the rear sliding door with a spark plug, entered

the house, and taken a camera, a credit card, and a gun. (Id., pp. 232-34.)

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

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 Bowen’s convictions and sentences, as well

as 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

Bowen alleges ineffective assistance of trial 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.

Bowen 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, Bowen 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.

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

Bowen contends that the trial court erred in denying his motion to suppress any

evidence obtained as a result of his arrest and the search of his apartment. In his motion

to suppress, Bowen argued that he was arrested without probable cause and that his

apartment was illegally searched before police obtained a warrant. Following an

evidentiary hearing, the trial court denied the motion. Bowen filed a motion for

reconsideration, and the trial court held another hearing. At the conclusion of the

second hearing, the trial court denied the motion for reconsideration and reaffirmed

its prior ruling. According to Bowen, the trial court failed to give him “a full and fair

opportunity to litigate the violation of his Fourth Amendment” rights. (Doc. 1, p. 9.)

Bowen also claims that the denial of his motion involved an unreasonable application

of clearly established federal law and was based on unreasonable factual

determinations.

Respondent contends that this claim is barred by Stone v. Powell, which held that

“where the State has provided an opportunity for full and fair litigation of a Fourth

Amendment claim, a state prisoner may not be granted federal habeas corpus relief on

the ground that evidence obtained in an unconstitutional search or seizure was

introduced at his trial.” 428 U.S. 465, 494 (1976). Alternatively, Respondent argues

that the trial court’s denial of the motion to suppress is entitled to AEDPA deference.

Because the Court concludes that AEDPA deference applies to the denial of the

motion to suppress, it need not consider whether Stone bars this claim. See Mays v.

Davenport, 560 F. App’x 958, 962 (11th Cir. 2014) (declining to address whether habeas

petition was “timely,” or whether “illegal arrest claim” was “precluded by Stone,”

because petition was “due to be denied on the merits”).

1. Factual Background

The evidence at the two suppression hearings revealed the following. In January

2014, Detective Bowie was investigating a string of burglaries in Temple Terrace.

Approximately ten residences within “a mile or two” of each other had been

burglarized. (Doc. 9-2, Ex. 1a, p. 258.) As part of his investigation, Detective Bowie

viewed surveillance footage showing a man and a woman enter a Publix and

unsuccessfully attempt to use a credit card stolen during one of the burglaries.

Detective Bowie also saw footage showing a woman attempting to use the stolen credit

card at a Marathon gas station. The woman appeared to be wearing the same clothing

as the woman at the Publix.

Detective Bowie also learned that, on December 30, 2013, Bowen had pawned

a brand-new Canon Rebel T3i camera at a pawnshop located approximately two miles

from his apartment. The camera matched the description of a camera that had been

stolen during one of the burglaries. Detective Bowie was not, however, able to

compare the cameras’ serial numbers. Several days later, on January 4, 2014, Dosha

Marshall—Bowen’s live-in girlfriend—pawned a Samsung Galaxy tablet at the same

pawn shop Bowen had visited. This time, Detective Bowie was able to use the serial

number to confirm that the tablet had been stolen from one of the burglarized houses.

Detective Bowie also observed from surveillance footage that the clothing Marshall

wore at the pawn shop “exactly matched” the clothing worn by the woman at the

Publix and the gas station. (Id., p. 266.)

On the morning of January 6, 2014, police conducted surveillance of Bowen.

Law enforcement followed him as he left his probation office and walked to a pawn

shop. After Bowen left the shop, Corporal Brian Bishop went inside to find out

whether he had pawned anything. Corporal Bishop learned that Bowen had pawned,

among other items, a gold ring inscribed with the word “Amor.” (Id., p. 269.) Corporal

Bishop used his cellphone to send Detective Bowie pictures of the items Bowen had

pawned, including the gold ring.

The ring caught Detective Bowie’s attention because it “matched the

description” of an item stolen during one of the burglaries. (Id.) Detective Bowie tried

to email pictures of the ring to the victim, but she “was not able to open” the message.

(Id., p. 270.) According to Detective Bowie, however, he was able to describe the ring

to the victim over the phone, and she “confirm[ed]” that it was hers. (Id.) Although

Detective Bowie claimed he made this call before Bowen was arrested, phone records

from that day did not show any calls between Detective Bowie and the victim. For her

part, the victim testified that she spoke to Detective Bowie over the phone that day,

but she could not “remember the time.” (Id., p. 314.) In any event, after Bowen was

arrested, the victim went to the police station and confirmed that the gold ring

belonged to her.

After learning about the pawning of the ring, Detective Bowie believed he had

probable cause to arrest Bowen. Accordingly, he directed law enforcement to arrest

Bowen and began preparing an application for a search warrant for Bowen’s

apartment. Bowen was arrested at 10:30 a.m. and taken to the police station. As he

was drawing up the search-warrant application, Detective Bowie told law enforcement

to “secure” Bowen’s apartment. (Id., p. 272.) Approximately ten minutes after the

arrest—but before the search warrant had been obtained—law enforcement arrived at

the apartment.

The police knocked on the door, and Bowen’s brother (Ronald Gilmore)

answered. Gilmore was staying at the apartment with his two-year-old son. Law

enforcement asked if they could come inside; Gilmore “told them no.” (Id., p. 318.)

As this conversation was taking place in the doorway, Officer Bryan Campagnano

noticed a laptop and a television in the living room that “appeared to be similar to the

ones that [Detective] Bowie was looking for [in connection with] the cases that he was

working.” (Id., p. 244.) But Officer Campagnano could not tell whether they were in

fact the missing items. The police ultimately ordered Gilmore and his son to leave

while they secured the apartment. Law enforcement then conducted a “cursory”

search to ensure “that there [were] no other unattended children being left behind”

and that “there [were] no other people in there that could possible destroy evidence.”

(Id., p. 245.) Once the apartment was secured, police waited outside for the search

warrant.

Later that day, Detective Bowie finally obtained a search warrant for the

apartment. The affidavit in support of the search-warrant application described the

surveillance footage from the Publix and the Marathon gas station. It also noted that

(1) Bowen had pawned a brand-new Canon Rebel T3i camera several days after a

brand-new camera of the same make and model had been stolen during a burglary; (2)

Marshall (Bowen’s live-in girlfriend) had pawned a Samsung Galaxy tablet that was

stolen during a burglary; and (3) Bowen had pawned a gold ring with the word “Amor”

on it two days after an item matching that description had been stolen during a

burglary. (Id., Ex. 1, pp. 26-27.) Furthermore, the affidavit asserted that, following

Bowen’s arrest, law enforcement searched his apartment and “discovered an iPad

mini, a TV, and other items that matched the property stolen from the several

burglaries in plain view.” (Id., p. 28.) Based on these facts, the affidavit concluded that

there was “reason to believe . . . that there [were] currently items of evidence related

to an active criminal investigation” in Bowen’s apartment. (Id.)

Law enforcement executed the search warrant at 3:00 p.m. on January 6, 2014.

During the search, police recovered several items, including the Glock that had been

taken from Campbell and Valentine’s house and two iPad minis that had been stolen

from a different residence. As noted above, after his arrest, Bowen confessed to the

burglary of Campbell and Valentine’s house.

2. The Trial Court’s Rulings

The trial court denied Bowen’s motion to suppress. First, the court ruled that

the initial search of the apartment—conducted before a search warrant had been

obtained—was “an illegal entry.” (Id., Ex. 1a, p. 349.) In doing so, the court rejected

the State’s argument that the initial entry qualified as a valid “protective sweep.” (Id.)

The court then turned to “the issue of probable cause for the arrest.” (Id., p. 352.) It

found that “there was sufficient probable cause [to arrest Bowen] based on [his]

pawning a ring which matched the identification of a ring that had been recently

stolen.” (Id.) Next, the court addressed “the search warrant.” (Id.) It reiterated that the

initial entry into the apartment was “illegal,” but found that the unlawful entry did

“not taint the warrant that was eventually obtained.” (Id.) Accordingly, the court

concluded that the warrant and the search were “still good.” (Id., pp. 352-53.)

Bowen subsequently filed a motion for reconsideration, arguing that (1) newly

obtained cell-phone records showed that Detective Bowie did not call the victim about

the gold ring before Bowen’s arrest, and (2) the ring was recovered during the

execution of the search warrant rather than from the pawn shop. Another evidentiary

hearing was held, after which the trial court denied the motion from the bench:

All right. The Motion for Reconsideration is denied. I reaffirm my prior

ruling. The ring in my mind was a unique ring. It’s a ring with Amor[].

Although Amor[] is love, it is still a unique ring.

I find that Mr. Bowie’s testimony is credible regarding his making contact

with the victim and describing that ring to her. Again, the evidence

indicates the ring was found at the pawn shop. It was no—the officers

testified there was no jewelry found at the scene of the search warrant.

And clerical errors unfortunately do happen. Sometimes numbers are

transposed. Sometimes wrong addresses are listed. That happens.

Everybody is just human. Those kind of mistakes happen.

I think the testimony is clear that the ring was pawned. That the ring was

described over the phone to the victim in the case and she confirmed that

sounded like her ring. So, I’ll deny the motion.

(Doc. 9-3, Ex. 1e, pp. 159-60.)

On direct appeal, Bowen argued that the trial court erred in denying his motion

to suppress. (Id., Ex. 2, pp. 20-23.) As noted above, the state appellate court affirmed

without opinion. (Id., Ex. 5.)

3. This Court’s Review of the Trial Court’s Rulings

The trial court did not act unreasonably in denying the motion to suppress.

First, the court reasonably concluded that law enforcement had probable cause to

arrest Bowen for burglary. The Fourth Amendment protects “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures.” U.S. Const., amend. IV. “[A] warrantless arrest by a law officer is

reasonable under the Fourth Amendment where there is probable cause to believe that

a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146,

152 (2004). “Probable cause exists where the facts within the collective knowledge of

law enforcement officials, derived from reasonably trustworthy information, are

sufficient to cause a person of reasonable caution to believe that a criminal offense has

been or is being committed.” Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11th

Cir. 2010). “[T]he probable-cause standard is a practical, nontechnical conception that

deals with the factual and practical considerations of everyday life on which reasonable

and prudent men, not legal technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370

(2003).

Here, ample evidence supported the trial court’s finding that law enforcement

had probable cause to arrest Bowen for burglary. Before the arrest, Detective Bowie

had been investigating a series of burglaries in Temple Terrace. The investigation

revealed that (1) Bowen had recently pawned a Canon Rebel T3i camera that matched

the description of a camera stolen during one of the burglaries; (2) several days later,

Bowen’s live-in girlfriend pawned a Samsung Galaxy tablet that had been taken during

another burglary; and (3) when she pawned the tablet, Bowen’s girlfriend was wearing

the same clothes worn by the woman who had tried to use a credit card stolen during

one of the burglaries. Furthermore, shortly before he was arrested, Bowen pawned a

gold ring inscribed with the word “Amor.” The ring matched the description of an

item of jewelry stolen during a burglary. Finally, Detective Bowie testified that, before

he ordered the arrest, he described the ring over the phone to the victim, who

confirmed that it was hers.

Taken together, the “facts and circumstances within [the officers’] knowledge

[were] sufficient to warrant a reasonable belief that [Bowen] had committed” burglary.

Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009). Thus, the trial court reasonably

concluded that law enforcement had probable cause to arrest Bowen for burglary. See

Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996) (“Probable cause does not

require overwhelmingly convincing evidence, but only reasonably trustworthy

information.”).3

Nor did the trial court act unreasonably in finding that the evidence seized

pursuant to the search warrant was admissible. As noted above, the trial court found

that the initial, warrantless entry into the apartment was unlawful and did not qualify

as a protective sweep.4 Accordingly, the question before the trial court was “whether

the results of the subsequent search, conducted after the warrant was finally obtained,

should have been suppressed.” United States v. Chaves, 169 F.3d 687, 692 (11th Cir.

1999). “[W]here, as here, the search warrant affidavit is based on information acquired

as a result of an illegal entry, [the court] must look to whether the other information

provided in the affidavit is sufficient to support a probable cause finding.” Id. “If the

remaining or nonexcised information is enough to support a probable cause finding,

the [next step] is [to] determine whether the officer’s decision to seek the warrant was

prompted by what he had seen during the arguably illegal entry.” United States v.

3 Following the arrest, Detective Bowie prepared a Criminal Report Affidavit. The probable-cause

section of the Affidavit relied entirely on information obtained after the arrest. But Detective Bowie

was not acting pursuant to an affidavit and judicially issued warrant when he ordered Bowen’s arrest.

Thus, because the arrest was “permissibly warrantless,” “[a]ny defects in the later-completed arrest

affidavit [were] immaterial.” Jeanty v. City of Miami, 876 F. Supp. 2d 1334, 1345 (S.D. Fla. 2012).

4 The trial court correctly concluded that the initial entry did not qualify as a protective sweep. Bowen

was arrested approximately two miles from his apartment. “To justify a protective sweep beyond the

immediate location of the arrest, officers must have reasonable suspicion ‘that the area to be swept

harbors an individual posing a danger to those on the arrest scene.’” United States v. Yarbrough, 961

F.3d 1157, 1163 (11th Cir. 2020) (quoting Maryland v. Buie, 494 U.S. 325, 334 (1990)). There was no

evidence that law enforcement had any basis to believe that Bowen’s apartment “harbor[ed] an

individual posing a danger to those on the arrest scene.” Id.

Noriega, 676 F.3d 1252, 1260 (11th Cir. 2012). “Probable cause to support a search

warrant exists when the totality of the circumstances allow a conclusion that there is a

fair probability of finding contraband or evidence at a particular location.” United States

v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999).

Only one piece of information in the search-warrant affidavit came from the

unlawful initial entry. Specifically, the affidavit stated that, while searching the

apartment, law enforcement “discovered an iPad mini, a TV, and other items that

matched the property stolen from the several burglaries in plain view.” (Doc. 9-2, Ex.

1, p. 28.) But even if that information were excised from the affidavit, the remaining

information would be sufficient to support a probable-cause finding. In particular, the

affidavit recounted that (1) Bowen had pawned a brand-new Canon Rebel T3i camera

several days after a brand-new camera of the same make and model had been stolen

during a burglary; (2) Bowen’s live-in girlfriend had pawned a Samsung Galaxy tablet

that was stolen during a burglary; and (3) Bowen had pawned a gold ring with the

word “Amor” on it two days after an item matching that description had been stolen

during a burglary. (Id., pp. 26-27.) Those “facts and circumstances would lead a

reasonably prudent person to believe that [Bowen’s apartment] contain[ed] . . .

evidence of a crime.” United States v. Lopez, 649 F.3d 1222, 1245 (11th Cir. 2011).

Moreover, there was no basis to conclude that Detective Bowie’s “decision to

seek the warrant was prompted by what he had seen during the arguably illegal entry.”

Noriega, 676 F.3d at 1260. To the contrary, Detective Bowie testified that he began

preparing the search-warrant application before law enforcement “secured” the

apartment. (Doc. 9-2, Ex. 1a, p. 272.) Thus, the record supports the conclusion that

Detective Bowie would “have sought the search warrant even if [law enforcement] had

not conducted the [unlawful] protective sweep.” Noriega, 676 F.3d at 1263.

Accordingly, the trial court reasonably concluded that the unlawful initial entry did

“not taint the warrant that was eventually obtained.” (Doc. 9-2, Ex. 1a, p. 352.)

In short, the trial court’s denial of the motion to suppress did not involve an

unreasonable application of clearly established federal law, nor did it rest on

unreasonable factual determinations. For this reason, Bowen is not entitled to relief

on Ground One.

B. Ground Two

Bowen contends that the trial court erred in denying his motion to suppress the

statements he made during his post-arrest interview with law enforcement. In this

motion to suppress, Bowen argued that his Miranda rights were violated because law

enforcement reinitiated questioning after he invoked his right to counsel. Specifically,

Bowen alleged that, during his initial interview with law enforcement, he “invoked his

right to remain silent and law enforcement ceased questioning him.” (Id., Ex. 1, p. 74.)

He was then taken to a holding cell. According to Bowen, Sgt. Hutner “reinitiated

contact with him at his holding cell,” “convinced him to make a statement,” and told

him that “he would have to say that Bowen reinitiated contact, not [Sgt.] Hutner.”

(Id., p. 69.) Bowen claimed that this part of the interview “was not recorded.” (Id.)

The trial court heard testimony on this issue from Bowen and Sgt. Hutner.

During the hearing, Bowen expanded on the allegations in his motion. He reiterated

that, after he invoked his constitutional rights, he was taken to a holding cell. There,

Sgt. Hutner brought him some food and told him that “he did not think [he] committed

any burglary.” (Id., Ex. 1a, pp. 323-24.) Sgt. Hutner was then called out of the room.

Approximately twenty minutes later, Sgt. Hutner returned and allegedly informed

Bowen that police had “found a gun inside the apartment.” (Id., p. 324.) According to

Bowen, Sgt. Hutner said “they were going to charge Dosha Marshall [Bowen’s

girlfriend] with the gun.” (Id.) Bowen disclaimed knowledge of the gun. In response,

Sgt. Hutner allegedly told Bowen that his son with Marshall was a “DCF case” and

would get “t[a]ken if [he] didn’t fall for the gun.” (Id., pp. 324-25.) Bowen then said he

would speak to Sgt. Hutner. According to Bowen, Sgt. Hutner told him that, once the

recording device was turned on, he would have to “admit that [he] was initiating the .

. . confession.” (Id., p. 325.)

Sgt. Hutner offered a different account at the hearing. He testified that, around

11:30 a.m. on January 6, he walked into the holding cell where Bowen was being kept.

Bowen recognized Sgt. Hutner based on a prior case Sgt. Hutner had investigated. Sgt.

Hutner told Bowen that “he was arrested for the burglary investigation that [the police]

were currently doing.” (Id., p. 300.) Sgt. Hutner then walked into the interview room

with Detective Bowie and Bowen. As Detective Bowie sat down and “pulled out [his]

paperwork,” Sgt. Hutner left the room and returned to his desk. (Id., pp. 300-01.) After

Detective Bowie read him his Miranda rights, Bowen invoked his right to counsel, and

the interview ceased. Later that day, an officer came to Sgt. Hutner’s desk and “said

that Akeem Bowen wanted to talk to” him or “somebody.” (Id., p. 301.)

Sgt. Hutner then “ma[d]e contact” with Bowen in the holding cell. (Id., p. 302.)

According to Sgt. Hutner, his “entire contact with [Bowen]” was “recorded.” (Id.) The

first part of the interview included the following exchange:

[Sgt. Hutner]: Sergeant Hutner, Tampa Police. It’s Monday January 6th

2:50 p.m. here with Akeem Bowen, temporary holding area. He is under

arrest for burglary. Before we attempted to talk to Akeem, you told me

that you wanted a lawyer present. Do you understand, is that right?

[Bowen]: Yes, sir.

[Sgt. Hutner]: Okay. And now you called me back in here because you

want to tell me some more. So you are initiating this conversation, right?

[Bowen]: Yes, sir.

[Sgt. Hutner]: Do you still understand your rights?

[Bowen]: Yes, sir.

[Sgt. Hutner]: Do you want to talk to me or no?

[Bowen]: Yes.

[Sgt. Hutner]: Um-hum.

[Bowen]: You’re saying I’m under arrest for burglary?

[Sgt. Hutner]: Yes. . . . Right now you’re under arrest. That’s why you

are here in handcuffs. I told you, for possession of stolen property.

[Bowen]: Yes, that’s probably the only thing. That’s the only thing.

[Sgt. Hutner]: Well listen, it’s to up to you if you want to talk to me about

it or not.

[Bowen]: I told you—I, I bought the stuff. I bought the stuff.

[Sgt. Hutner]: Listen, if you want to talk to me, you called me back in

here to talk to me about the stuff. If you want to tell me the stuff that that

their—if you want to say, like, the reason why you called me back in

here, we can talk about that. But right now, all’s I’m saying is you’re

under arrest right now for burglary. If there’s different situations that we

can verify and things turn out right, could you be charged with different

things? Yeah[.]

[Bowen]: Okay.

[Sgt. Hutner]: Okay.

[Bowen]: Okay.

[Sgt. Hutner]: So I just want to make sure you understand—

[Bowen]: Yes.

[Sgt. Hutner]: —that your rights were read to you fully. You understood

your rights. But you decided to have a lawyer present.

[Bowen]: Yes, sir.

[Sgt. Hutner]: Right? Is that right?

[Bowen]: Yes, sir.

[Sgt. Hutner]: Now, you, you wanted to talk to a detective so I’m in here,

give you the opportunity to talk, right?

[Bowen]: Yes, sir.

[Sgt. Hutner]: I’m going to ask you some questions. You are still good

with that, right?

[Bowen]: Yes, sir.

(Id., pp. 303-05.)

The trial court ultimately denied the motion to suppress Bowen’s statements,

reasoning that “there was a sufficient lapse [after the initial invocation] and [Bowen]

reinitiated the contact with the officer.” (Id., p. 331.) Bowen challenged this ruling on

direct appeal, and the state appellate court affirmed without opinion. (Doc. 9-3, Ex. 2,

pp. 23-31; Id., Ex. 5.)

The trial court did not act unreasonably in denying the motion to suppress. “[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)). Thus, “if the

accused invoked his right to counsel, courts may admit his responses to further

questioning only on finding that he (a) initiated further discussions with the police,

and (b) knowingly and intelligently waived the right he had invoked.” Smith v. Illinois,

469 U.S. 91, 95 (1984).

Here, the trial court implicitly credited Sgt. Hutner’s account of the

interrogation. “Determining the credibility of witnesses is the province and function

of the state courts, not a federal court engaging in habeas review.” Consalvo v. Sec’y for

Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011); see also Williams v. Johnson, 845 F.2d

906, 909 (11th Cir. 1988) (noting that, on federal habeas review, “[i]mplicit findings

regarding the credibility of witnesses are included among the findings that this Court

must credit”). Bowen has not shown by “clear and convincing evidence” that the trial

court’s credibility determination was erroneous. 28 U.S.C. § 2254(e)(1). Accordingly,

the question is whether, accepting Sgt. Hutner’s version of events as true, the trial court

reasonably concluded that Bowen failed to establish a Miranda violation.

The answer to that question is yes. After being read his Miranda rights, Bowen

invoked his right to counsel, and the interview ended. Sometime later, according to

Sgt. Hutner, an officer visited him at his desk and said that Bowen “wanted to talk to”

him or “somebody.” (Doc. 9-2, Ex. 1a, p. 301.) Sgt. Hutner then visited Bowen in the

holding cell and asked him to confirm that he was “initiating this conversation.” (Id.,

p. 304.) Bowen answered in the affirmative. Sgt. Hutner asked Bowen whether he “still

underst[ood] [his] rights.” (Id.) Bowen responded, “Yes, sir.” (Id.) Bowen then

indicated that he wanted to talk to Sgt. Hutner. Thus, the state-court record reflects

that (1) law enforcement appropriately ended the interview when Bowen invoked his

constitutional rights, (2) Bowen himself initiated further conversation with law

enforcement when he asked to speak with Sgt. Hutner or “somebody,” and (3)

Bowen’s subsequent waiver of his rights was knowing, intelligent, and voluntary.

Faced with this testimony, the trial court reasonably concluded that no Miranda

violation occurred. 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?’”).5

In sum, Bowen cannot show that the trial court’s denial of the motion to

suppress his statements involved an unreasonable application of clearly established

federal law or rested on an unreasonable factual determination. Thus, Bowen is not

entitled to relief on Ground Two.

C. Ground Three

Bowen contends that the trial court violated his Sixth and Fourteenth

Amendment rights by instructing the jury on the theory of principals. “To convict

under a principals theory, the State is required to prove that the defendant had a

conscious intent that the criminal act be done and . . . the defendant did some act or

said some word which was intended to and which did incite, cause, encourage, assist,

or advise the other person or persons to actually commit or attempt to commit the

crime.” Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012). Bowen maintains that

the principals-theory instruction violated his constitutional rights because (1) the

theory was not included in the information, and (2) there was “no evidence to support

an aiding an[d] abetting theory of guilt[].” (Doc. 1, p. 22.)

5 To be sure, Sgt. Hutner did not reread Bowen his Miranda rights during the second interview. But

there is no Supreme Court precedent requiring law enforcement to readvise a suspect of his Miranda

rights in these circumstances. See United States v. Knight, No. 1:06-cr-514-CAP/AJB, 2007 WL

9718818, at *13 (N.D. Ga. Aug. 7, 2007) (“[T]he Court agrees with the government that [law

enforcement] was not required to repeat the Miranda warnings to [defendant] after [defendant]

voluntarily requested [law enforcement] to come see him at the Fulton County Jail.”), adopted by 2007

WL 9718823 (N.D. Ga. Nov. 13, 2007), aff’d, 336 F. App’x 900 (11th Cir. 2009).

Respondent correctly contends that Bowen failed to exhaust this claim. Proper

exhaustion requires a petitioner to “make the state court aware that the claims asserted

present federal constitutional issues.” Jimenez v. Fla. Dep’t of Corr., 481 F.3d 1337, 1342

(11th Cir. 2007). “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.’”

Baldwin v. Reese, 541 U.S. 27, 32 (2004). A petitioner must do more, however, than

“scatter some makeshift needles in the haystack of the state court record.” McNair v.

Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005). For example, “one passing reference

to the Due Process Clause . . . is insufficient to notify [a] state court that [a petitioner]

[is] raising a federal claim.” Copeland v. Fla. Dep’t of Corr. Sec’y, 851 F. App’x 927, 931

n.1 (11th Cir. 2021).

On direct appeal, Bowen argued that the trial court erred by instructing the jury

on the principals theory “when [that] theory was not charged in the information” and

“the evidence did not support the instruction.” (Doc. 9-3, Ex. 2, p. 32.) The only

reference to the federal constitution appeared in the section headings of Bowen’s

appellate briefs. Those headings stated that the trial court violated the “due process

and notice provisions of the United States Constitution” by giving an instruction that

was not charged in the information. (Id.; see also id., Ex. 4, p. 8.) Setting aside that bare

reference to the federal constitution, Bowen couched his argument entirely in terms of

state law. He did not cite any federal cases, nor did he apply federal standards to the

facts. Instead, he relied entirely on Florida appellate opinions—none of which rested

on federal constitutional grounds. As a result, Bowen failed “to afford the state courts

a meaningful opportunity to consider” his federal claim. McNair, 416 F.3d at 1302; see

also Ramos v. Sec’y, Fla. Dep’t of Corr., 441 F. App’x 689, 696-97 (11th Cir. 2011)

(holding that petitioner failed to “fairly present” federal issue on appeal because he

“mention[ed] his federal constitutional rights only in an opening paragraph” of his

brief and did not “argue federal standards” or “include references to federal case law”);

Hartley v. Sec’y, Fla. Dep’t of Corr., No. 3:08-cv-962-MMH-LLL, 2022 WL 3099256, at

*20 (M.D. Fla. Aug. 4, 2022) (finding that petitioner failed to fairly present federal

claim because, “[o]ther than the heading of the claim, [he] did not cite to the United

States Constitution or rely on federal case law in arguing [his] claim to the Florida

Supreme Court; instead, he relied solely on cases applying Florida law”).

Bowen cannot return to state court to present his unexhausted 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

Three 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.”). Bowen has not shown

that an exception applies to overcome the default.6 Thus, Ground Three is barred from

federal habeas review and affords Bowen no relief.

Even if Bowen had exhausted this claim, he would not be entitled to relief. As

an initial matter, no clearly established federal law required the State to allege in the

information that it would be trying Bowen under a principals theory. See United States

v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984) (“Aiding and abetting need not be

specifically alleged in the indictment . . . .”); United States v. Tucker, 402 F. App’x 499,

502 (11th Cir. 2010) (“The district court did not err, plainly or otherwise, when it gave

an aiding-and-abetting instruction to the jury, although such a theory of guilt was not

alleged in the indictment.”); Emil v. Baker, 667 F. App’x 277, 278 (9th Cir. 2016)

(noting that “there is no Supreme Court precedent holding that due process requires

an information to specifically allege a theory of aiding and abetting”); see also Ford v.

State, 306 So. 3d 417, 422 (Fla. 1st DCA 2020) (“[A] defendant need not be charged

as a principal to support a conviction as a principal.”).

Bowen also contends that the trial court should not have given the principals-

theory instruction because there was “no evidence to support an aiding an[d] abetting

theory of guilt[].” (Doc. 1, p. 22.) Even assuming that the challenged instruction was

unsupported by any evidence, Bowen is not entitled to relief. The trial court did give a

6 In addressing Ground Three in his reply, Bowen cites Martinez v. Ryan, 566 U.S. 1 (2012). But

Martinez cannot excuse the default of a claim of trial-court error. See Gore v. Crews, 720 F.3d 811, 816

(11th Cir. 2013) (“By its own emphatic terms, the Supreme Court’s decision in Martinez is limited to

claims of ineffective assistance of trial counsel that are otherwise procedurally barred due to the

ineffective assistance of post-conviction counsel.”).

principals-theory instruction, but it also provided instructions that would allow the

jury to find Bowen directly responsible for the charged offenses. (Doc. 9-2, Ex. 1d, pp.

321-36.) As the factual summary above makes clear, the jury heard overwhelming

evidence that Bowen himself committed burglary and grand theft. The Supreme Court

has held that “it [is] no violation of due process [for a] trial court [to] instruct[] a jury

on two different legal theories, one supported by the evidence, the other not.” Sochor

v. Florida, 504 U.S. 527, 538 (1992); see also Galmore v. Hanks, 85 F.3d 631, 631 (7th

Cir. 1996) (holding that “the aider and abettor instruction, even if unsupported by any

evidence . . ., did not violate [petitioner’s] due process rights,” because “sufficient

evidence [existed] to support his conviction as a principal on the criminal deviate

conduct charge”); Phillips v. Sec’y, Fla. Dep’t of Corr., No. 3:15-cv-602-TJC-JBT, 2018

WL 3974109, at *10 (M.D. Fla. Aug. 20, 2018) (holding that state court “did not err

in reading the principal instruction to the jury” because, among other things, “there

was legally sufficient evidence to convict [petitioner] without the use of the principal

theory”).7

D. Ground Four

Finally, Bowen argues that his trial counsel provided ineffective assistance by

“misadvising [him] about the consequences of [a] plea bargain.” (Doc. 1, p. 23.)

Bowen notes that, in addition to the charged offenses, he faced multiple probation

7 To the extent that Bowen alleges the trial court’s principals-theory instruction was erroneous as a

matter of state law, such a claim is not cognizable on federal habeas review. See, e.g., Branan v. Booth,

861 F.2d 1507, 1508 (11th Cir. 1988) (“[A] habeas petition grounded on issues of state law provides

no basis for habeas relief.”).

violations at the time of trial. According to Bowen, after several rounds of negotiations,

the State ultimately agreed to a “global” plea deal in which he would receive ten years’

imprisonment followed by ten years’ probation. (Id., pp. 23-24.) Bowen contends that,

because the “plea offer encompass[ed] all of the violations of probation,” the “trial

court would have to structure all of his sentences, including the [probation-violation]

sentences, according to the global agreement of ten years[’] prison, followed by ten

years of probation.” (Id., p. 24.) Yet, according to Bowen, trial counsel mistakenly

advised him that the plea deal “was only on the new charges and he could still get 30

years[’] prison on the violation of probation cases.” (Id., p. 25.) Bowen maintains that,

as a result of this allegedly incorrect advice, he rejected the plea deal and proceeded to

trial, “at the conclusion of which he was sentenced to life in prison.” (Id., p. 24.)

Following an evidentiary hearing, the state court denied this claim as follows:

Defendant alleges ineffective assistance of counsel for misadvising

Defendant about the consequences of the plea bargain. Defendant alleges

he was charged with numerous crimes contained in multiple

Informations together with five counts of violation of probation. He

alleges the State originally offered him 18 years’ prison followed by 10

years’ probation. He alleges he rejected the offer based on counsel’s

advice that if the suppression motion were granted, it would weaken the

State’s case. He alleges, however, that all motions were denied.

Defendant alleges the State later made offers of 15 years’ prison followed

by 10 years’ probation, and 12 years’ prison followed by 10 years’

probation. He alleges on October l, 2014, the State told counsel it would

consider a reasonable offer proposed by Defendant, to which Defendant

responded with a counteroffer of 10 years’ prison followed by 10 years’

probation. Defendant alleges the State accepted his counteroffer.

Defendant alleges, however, when he discussed the matter with counsel,

counsel advised him that the trial judge “would still be authorized to

sentence him to 30 years in prison for the probation violations regardless

of the plea negotiations with the State on these specific charges.”

Defendant alleges he rejected a plea deal based on this advice and

proceeded to trial, at the conclusion of which he was sentenced to life in

prison.

Defendant alleges counsel misadvised him because the plea deal was a

global plea offer encompassing all the charges and all of the violations of

probation. Defendant alleges that counsel should have advised him if he

accepted the global offer, it meant the trial court would have to structure

all of his sentences, including the [probation-violation] sentences,

according to the global agreement of ten years’ prison followed by ten

years’ probation. Defendant alleges if he had been so advised, he would

not have rejected the plea offer.

Defendant alleges the trial court would not have rejected the offer, which

is supported by the court’s instruction that “both parties should get

together and try to reach an agreement to resolve all of the cases as a

whole.” He alleges the State would not have withdrawn the offer as the

State initiated the negotiations and accepted his counteroffer. Finally, he

alleges the life sentence he received is more severe than the offer of ten

years’ prison followed by ten years’ probation.

At the evidentiary hearing, Defendant testified he made a counteroffer of

ten years’ prison followed by ten years’ probation, which he intended to

be a global offer to encompass all of his charges. He testified his attorney

advised him that the counteroffer was only on the new charges and he

could still get 30 years’ prison on the violation of probation cases.

Defendant testified this conversation took place in the courtroom and

lasted ten minutes at most. He testified he told his attorney he thought

the offer was for all of his cases and his attorney responded that the State

did not have any weight over the probation violations. Defendant

testified his attorney told him he could receive 30 years’ prison on the

probation violations. Defendant testified he abandoned his counteroffer

based on counsel’s representation that he could still get 30 years’ prison

on the violations. He testified if he had been told the offer was [a] global

offer, he would have accepted the offer.

Defendant’s attorney, Shawn Goforth, also testified at the evidentiary

hearing. Mr. Goforth testified the State made an offer on September 22,

2014, of twelve years’ prison with a ten-year minimum mandatory

followed by ten years’ probation. He testified Defendant rejected the offer

and countered with an offer of a ten-year minimum mandatory followed

by ten years’ probation. Mr. Goforth testified his notes do not reflect that

this was a global offer, but all of the offers he would have taken to

Defendant would have been to wrap up all of his cases. He testified he

had never been involved in a case where the State wanted to resolve only

one or two cases and not all of them.

Mr. Goforth testified that after the State accepted Defendant’s offer of

ten years’ prison followed by ten years’ probation, the next step—if

Defendant ha[d] not rejected the offer—would have been to go to the

judge. He testified this particular judge always wanted to handle his

violations of probations. He testified he would have presented the

agreement to the judge and asked if the judge agreed to it. Mr. Goforth

testified it was his intent for Defendant’s counteroffer to be a global offer

and the next step would have been to “get the judge on board for that.”

Mr. Goforth testified he never told Defendant the offer only

encompassed the new charges.

On cross-examination, Mr. Goforth testified that he would have

discussed with Defendant that if the State accepted his counteroffer, they

would still need to present the agreement to the judge to ascertain if the

judge would agree to the sentence. He also testified he would have told

Defendant that Defendant would not have to enter into the agreement if

the judge did not agree to the sentence. He testified when Defendant

rejected the counteroffer, they did not get to see what the judge was going

to do with regard to the violations.

The Court finds the testimony of Mr. Goforth to be credible based on his

demeanor in court. Based on his testimony, the Court finds Mr. Goforth

did not advise Defendant that the offer of ten years’ prison followed by

ten years’ probation encompassed solely the new charges and that

Defendant would still be sentenced up to 30 years[] on the violations. The

Court finds that before Defendant and his attorney could find out if the

trial judge would have accepted the parties’ agreement as to all of

Defendant’s charges and cases, Defendant rejected the offer.

Consequently, the Court finds Defendant has not established deficient

performance.

(Doc. 9-4, Ex. 11, pp. 206-09 (record citations omitted).)

The state court reasonably rejected Bowen’s ineffective-assistance claim.8

“Before deciding whether to plead guilty, a defendant is entitled to the effective

assistance of competent counsel.” Padilla v. Kentucky, 559 U.S. 356, 364 (2010).

Erroneous advice about the consequences of pleading guilty can support a finding of

deficient performance. See, e.g., Goudie v. United States, 323 F. Supp. 2d 1320, 1330

(S.D. Fla. 2004) (“Several Circuits, including the Eleventh, have [] held that a defense

attorney’s unreasonably inaccurate advice to his or her client related to accepting or

rejecting a proposed plea agreement can rise to the level of ineffective assistance.”

(collecting cases)), aff’d, 132 F. App’x 823 (11th Cir. 2005). But “[w]ithout evidence

that [counsel] gave incorrect advice or evidence that he failed to give material advice,

[a petitioner] cannot establish that [counsel’s] performance was deficient.” Burt v.

Titlow, 571 U.S. 12, 23 (2013).

Here, the state court credited trial counsel’s testimony about his conversations

with Bowen concerning the State’s plea offers. As noted above, “[d]etermining the

credibility of witnesses is the province and function of the state courts, not a federal

court engaging in habeas review.” Consalvo, 664 F.3d at 845. Bowen has not shown by

“clear and convincing evidence” that the state court’s credibility determination was

erroneous. 28 U.S.C. § 2254(e)(1). To the contrary, the state court accurately

8 The state court did not cite Strickland in its discussion of this claim. But “[a] state court’s decision is

not ‘contrary to . . . clearly established Federal law’ simply because the court did not cite [relevant

Supreme Court] opinions.” Mitchell v. Esparza, 540 U.S. 12, 16 (2003). Indeed, “a state court need not

even be aware of [relevant Supreme Court] precedents, so long as neither the reasoning nor the result

of the state-court decision contradicts them.” Id.

summarized the testimony Bowen and trial counsel gave at the evidentiary hearing.

Thus, Bowen has failed to establish that the rejection of his ineffective-assistance claim

rested on “an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2).

Nor has Bowen shown that the state court unreasonably applied Strickland in

rejecting his ineffective-assistance claim. That claim rests on the assertion that trial

counsel mistakenly advised Bowen that the plea deal “was only on the new charges

and he could still get 30 years[’] prison on the violation of probation cases.” (Doc. 1,

p. 25.) As the state court explained, trial counsel testified that he did not “tell [Bowen]

that the State’s offer only encompassed the new charges.” (Doc. 9-4, Ex. 11, p. 189.)

To be sure, trial counsel also recounting telling Bowen that, if he accepted the offer,

“[they] [would] still have to go to [the trial court] and see if [it would] agree to th[e]

[proposed] sentence as it relates to the violations of probation.” (Id., p. 198.) But this

advice was accurate. The Florida Supreme Court has explained that “Florida’s trial

courts are not bound by any plea agreement.” Alcorn v. State, 121 So. 3d 419, 430 (Fla.

2013); see also Fla. R. Crim. P. 3.171(a) (“Ultimate responsibility for sentence

determination rests with the trial judge.”).

Moreover, although trial counsel could not specifically recall telling Bowen that

the plea deal was “global,” he testified that “all offers [he] would have taken to him

would have been the offer to wrap everything up.” (Doc. 9-4, Ex. 11, p. 188.) Trial

counsel elaborated that, “[n]ever once in [his] 11 years with the office, and practicing

criminal law[,] had the State wanted to resolve one or two cases and not all of them.”

(Id.) Trial counsel also testified that, in his discussions with Bowen concerning the

“counteroffer to the State . . . of ten years,” trial counsel’s “intent” was that this would

“be a global offer.” (Id., p. 189.)

In light of the state court’s reasonable credibility determination, Bowen has

failed to show that the rejection of his ineffective-assistance claim “was so lacking in

justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

Furthermore, because the state court reasonably concluded that Bowen failed to

establish deficient performance, this Court need not address the prejudice prong. See

Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the

[Strickland] test must be satisfied in order to show a violation of the Sixth Amendment,

the court need not address the performance prong if the defendant cannot meet the

prejudice prong, or vice versa.”). Accordingly, Bowen is not entitled to relief on

Ground Four.9

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

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

Certificate of Appealability

and Leave to Appeal In Forma Pauperis Denied

It is further ORDERED that Bowen is not entitled to a certificate of

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

9 To the extent that Bowen charges his trial counsel with affirmatively advising him to go to trial rather

than plead guilty, that claim was not presented in state court and is therefore unexhausted. Because

Bowen 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, Bowen has not

established that an exception applies to overcome the default.

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

Rather, a COA must first issue. Jd. “A [COA] may issue . . . only if the applicant has

made a substantial showing of the denial of a constitutional right.” Jd. at § 2253(c)(2).

To obtain a COA, Bowen 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). Bowen has not

made the requisite showing. Finally, because Bowen is not entitled to a COA, he is

not entitled to appeal in forma pauperis.

ORDERED in Tampa, Florida, on March 3, 2023.

lina fr. Musrunly Cine

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

35