Peeler v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL A. PEELER,

Petitioner,

v. Case No. 3:20-cv-230-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 Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) and

Supplement (Doc. 17). He challenges a 2010 state court (Duval County, Florida)

judgment of conviction for second degree murder with a firearm. He was

sentenced to life in prison without the possibility of parole. Respondents filed a

Response (Doc. 19) with exhibits (Docs. 19-1 to 19-2; Ex.). Petitioner, through

counsel, filed a Reply (Doc. 27). 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

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.”

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.

2016). “‘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,

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

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.

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. Analysis

A. Ground One

Petitioner testified at his trial. See Exs. B5 at 583 to B6 at 643. In the

Petition, he claims that on cross-examination, “the prosecutor’s questions and

comments on [Petitioner’s] right to remain silent violated his Fifth and Sixth

Amendment[] rights under the U.S. Constitution and Article 1, Section 9 & 12

of the Florida Constitution.”2 Doc. 1 at 4 (emphasis and capitalization omitted).

Petitioner contends that “the State demanded an explanation for why [he] did

not provide law enforcement with information concerning the murder,” which

“was an impermissible comment on his right to remain silent and an

2 Any claim based on a violation of the Florida Constitution is not cognizable in this

federal habeas case.

infringement upon his right to counsel.” Id. at 11. Petitioner takes issue with

the following exchange:

Q Now you say you were scared of Dominique, is

that right, sir?

A Yes, sir.

Q Now you were interviewed by the detectives

on October the 21st of 2009, correct?

A Yes, sir.

Q Today’s date is April the 14th, I believe, of

2010.

A Yes, sir.

Q Approximately how many attempts have you

made in that six, seven-month period to contact law

enforcement to explain to them that you didn’t do this

murder?

A None time.

Q Excuse me?

A None time, sir.

Q Zero?

A Zero.

Q Approximately how many letters have you

written to them saying Dominique did this, not me?

A None.

Q Sir, when you were talking to the detective - -

MS. BYNUM: Approach.

THE COURT: Mr. Garrison, hang

on just a minute.

MS. BYNUM: May we approach,

Your Honor?

THE COURT: Is there a legal

objection?

MS. BYNUM: There is an objection.

I don’t know that I want to say it outloud.

THE COURT: Counsel, approach

sidebar with the court reporter.

(Sidebar discussion with reporter

present.)

THE COURT: What’s the legal basis

for the objection?

MS. BYNUM: The legal basis I feel

like he’s getting to a point where he’s

going to start commenting on my client’s

right to an attorney and my client hired

me right out of the gate. At that point he

has counsel. He doesn’t need to come

forward to detectives and assert a case.

THE COURT: What’s your

response?

MR. GARRISON: Your Honor, this

defendant is claiming to this jury at this

point in time that the reason he didn’t

come forward at any point in time is that

he is scared to death of this person named

Dominique.

My response to him is that he has

the opportunity at any point in time, at

any point in time during the proceedings

he has the opportunity, not was he asked

but he did not avail himself of an

opportunity to contact law enforcement at

any point in time.

THE COURT: How is his not

indicating law enforcement not a comment

on his right to remain silent?

MR. GARRISON: The comment on

the right to remain silent is you asked a

question and you chose not to respond. I

have not one point in time asked him was

the question posed to him and he asserted

his right to counsel. He has been in the jail

and at any point in time he can come

forward with any information, counsel or

no counsel. He has the opportunity if he is

saying someone else committed this crime

and I have knowledge of it and I choose not

to come forward. He has asserted on the

record. He asserted during his case in

chief, during his direct examination he

chose not to do so because he was scared

of the defendant.[3]

THE COURT: All right. I will hear

you as to what he said.

MS. BYNUM: If I could respond to

that, Your Honor. I mean he at

arraignment entered a plea of not guilty.

He is entitled to maintain that plea of not

guilty, hire counsel to work this case for

him and require the state to prove its case

3 Given the context, it appears the prosecutor misspoke, and he meant to say, “because

he was scared of Dominique.”

beyond a reasonable doubt. He does not

have -- I don’t think he should be crossed

on what he didn’t come forward with.

THE COURT: I am going to sustain

the objection.

(Sidebar discussion concluded.)

MR. GARRISON: One moment, Your Honor.

THE COURT: Yes, sir.

BY MR. GARRISON:

Q Sir, you indicated during that 20 --

approximately 19-day period of time from October the

2nd of 2009 to October the 21st of 2009 you didn’t tell

anybody, about what had happened that you observed,

correct?

A No, sir.

Q You made a decision not to do so even though

you can do so anonymously, isn’t that correct, sir?

A I was not aware of that.

Q You didn’t attempt to say at any point in time

I’ve got information on a murder, I don’t want to give

my name, who can I talk to, did you?

A No, sir.

Q You never once took advantage of the Crime

Stoppers that is all over T.V. getting money

anonymously?

A I’m not sure how that works.

Q You’re not sure how that works?

A No, sir.

Doc. 1 at 4-11 (citing Ex. B6 at 630-34).

Respondents argue that the claim is unexhausted because Petitioner

failed to properly preserve the claim at trial by not citing “any federal

constitutional basis for his objection.” Doc. 19 at 9. Respondents also address

the claim on the merits. Id. at 35-40.

Petitioner, through counsel, raised this claim on direct appeal. See Ex. B7

at 19-29. The state responded, arguing that the issue was not properly

preserved, the alleged error was not fundamental, and the comments did not

affect the verdict and were harmless. See Ex. B8 at 9-19. Petitioner filed a

counseled reply. See Ex. B9. The First District Court of Appeal per curiam

affirmed Petitioner’s judgment of conviction without issuing a written opinion.

See Ex. B10.

To the extent Petitioner exhausted the federal nature of this claim and

the First DCA adjudicated the claim on the merits, the Court defers to the state

court’s ruling. 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. Therefore, Ground One is due to be denied.

Assuming the claim is not entitled to deference, the claim has no merit.

Defense counsel objected to the state’s line of questioning involving Petitioner’s

post-arrest silence, and the trial court sustained the objection. The state’s

follow-up questions were limited to Petitioner’s actions between the time of the

murder and his arrest. Defense counsel did not lodge another objection to the

state’s questions relating to Petitioner’s pre-arrest actions.

Regardless, there was ample evidence outside of this alleged improper

questioning to support Petitioner’s conviction, such that this purported error

did not have a “‘substantial and injurious effect or influence in determining the

jury’s verdict.’” Granda v. United States, 990 F.3d 1272, 1292 (11th Cir. 2021)

(quoting Davis v. Ayala, 576 U.S. 257, 267-68 (2015)). As summarized by

Respondents, the following testimony and evidence was presented at trial:

• Rishod McHellon testified that he saw

Petitioner put the gun to the head of the victim

(Antonio Colon-Rivera, a.k.a., “ToJo”) and shoot him.

(Ex. B4. pp. 246-247, 267-71).

• Michelle Brown testified that she was hanging

out at the Gregory Cove Apartments on October 2,

2009 (the date of the homicide) and observed

Petitioner drive up in a burgundy colored car. (Ex. B4.

pp. 326-30). Ms. Brown recalled that she was standing

15-20 feet away from Petitioner when he got out of the

car, pulled a gun from his pocket, pointed it at the

victim’s head and fired. (Ex. B4. pp. 333-35). She also

stated that she watched Petitioner drive away as the

victim lay on the ground with “blood running from out

[] his head.” (Ex. B4. pp. 337-38).

• Brittany G[]over testified that she knew

Petitioner (a.k.a., “Mike”) from school, and that on the

day the victim was shot, she observed Petitioner and

the victim seated in a small car, talking. (Ex. B4. pp.

351-53). Ms. G[]over further testified that fifteen

seconds after walking away from Petitioner and the

victim, she heard a gunshot. (Ex. B4. p. 354). When

she turned around, she saw the victim “on the ground

and I seen Mike pull off in the car.” (Ex. B4. p. 354).

• The State’s ballistics expert testified that a

spent cartridge found at the crime scene was fired

from the same gun found in Petitioner’s pocket when

he was arrested. (Ex. B5. pp. 4[6]9-[7]1, 475).

• Rishod McHellon testified that on the day of

the shooting, he and the victim had been hanging out

with their mutual friend, Darnell Caddell, in the

parking lot of the Gregory Cove Apartments (where

Caddell resided with his mother). (Ex. B4. pp. 250,

254-55). McHellon recalled that shortly before the

shooting, the victim borrowed Caddell’s mother’s

phone to call someone. (Ex. B4. pp. 255-56). McHellon

did not know who the victim had called (Ex. B4. p.

256); however, a few moments after the victim hung

up the phone, a maroon Nissan pulled into the parking

lot of the Gregory Cove Apartments with Petitioner

behind the wheel. (Ex. B4. p. 2[56-]58).

• Approximately three weeks later, a maroon

Nissan fitting the description of the getaway car (and

registered to Petitioner’s mother) was located at the

home of Petitioner’s parents. (Ex. B5. pp. 423-25).

• Investigators established through phone

records that three days after the victim’s murder, a cell

phone found in the maroon Nissan registered to

Petitioner’s mother had been assigned a new phone

number at the customer’s request. (Ex. B5. pp. 423-

29). Phone records also established that ten minutes

before the homicide was called in, the phone the victim

borrowed from Caddell’s mother was used to place a

call to the number previously assigned to the cell

phone found in the maroon Nissan registered to

Petitioner’s mother. (Ex. B5. pp. 430-32).

Doc. 19 at 38-39.

Considering the record, the Court finds the state’s questioning of

Petitioner did not result in “actual prejudice.” Brecht v. Abrahamson, 507 U.S.

619, 637 (1993). As such, Petitioner is not entitled to federal habeas relief on

Ground One.

B. Ground Two

Petitioner asserts that the trial court erred by allowing the state to elicit

testimony from witness Rishod McHellon about threats McHellon received prior

to trial regarding his testimony. Doc. 1 at 13-14. Petitioner acknowledges that

the state clarified the threats were not from Petitioner. Id. at 14. Petitioner,

however, argues that this testimony was not relevant or material, and “its

probative value was substantially outweighed by the danger of unfair prejudice

and misleading the jury.” Id. at 14-15 (citing Fla. Stat. § 90.402). Respondents

contend this claim is unexhausted “due to Petitioner’s failure to fairly present

any federal constitutional basis for his claim in the trial court or on direct

appeal.” Doc. 19 at 12 (citations omitted). Respondents alternatively address

the claim on the merits. Id. at 40-44.

Petitioner, through counsel, raised this claim on direct appeal in terms of

state law only. See Ex. B7 at 29-33. The state responded on the merits. See Ex.

B8 at 20-25. Petitioner filed a counseled reply. See Ex. B9. The First DCA per

curiam affirmed Petitioner’s judgment of conviction without issuing a written

opinion. See Ex. B10.

As noted above, Petitioner’s appellate brief addressed this issue in terms

of state law only and not as a violation of his federal constitutional rights. Thus,

he failed to allow the state courts the opportunity to resolve the federal nature

of his claim.4 Therefore, this claim is unexhausted and procedurally barred.

Petitioner has failed to show cause to excuse the procedural default or resulting

prejudice. Nor has Petitioner shown that a fundamental miscarriage of justice

would result if the Court did not address the claim on the merits. Thus, the

claim is due to be denied.

Even assuming this claim was not procedurally barred,

the general rule is that a federal court will not review

a trial court’s actions with respect to the admission of

evidence. A state evidentiary violation in and of itself

does not support habeas corpus relief. Before such

relief may be granted, the violation must rise to the

level of a denial of fundamental fairness.

4 Notably, in the Petition, the only reference to federal law is in the title of this ground;

the substance of Ground Two only addresses state law.

Shaw v. Boney, 695 F.2d 528, 530 (11th Cir. 1983) (internal quotations and

citations omitted). Considering the record, the Court finds that Petitioner has

failed to show his trial was rendered fundamentally unfair by allowing this

testimony. Thus, Ground Two is due to be denied.

C. Ground Three

Petitioner argues the trial court erred by clearing the courtroom during

witness Rishod McHellon’s testimony in violation of Petitioner’s Sixth and

Fourteenth Amendment rights. Doc. 1 at 16. Citing to Florida Supreme Court

cases, Petitioner claims that the trial judge failed to address “the legal standard

governing the closing of the courtroom to the public.” Id. at 17.

Respondents contend that this “claim is unexhausted due to Petitioner’s

failure to fairly present any federal constitutional basis for his claim in the trial

court or on direct appeal.” Doc. 19 at 14 (citations omitted). Respondents

alternatively address the claim on the merits. Id. at 44-49.

Petitioner, through counsel, raised this claim on direct appeal. See Ex. B7

at 33-35. Petitioner addressed the claim in terms of state law only. See id. The

state responded by arguing that the issue was not preserved because

Petitioner’s trial counsel argued differently in state court, and regardless, that

the closure was reasonable in response to the witness being “scared to death”

and it was not an abuse of discretion. See Ex. B8 at 25-28. Petitioner filed a

counseled reply. See Ex. B9. The First DCA per curiam affirmed Petitioner’s

judgment of conviction without issuing a written opinion. See Ex. B10.

The Court agrees with Respondents that this claim is unexhausted.

Petitioner’s appellate brief addressed this issue in terms of state law and

procedure only, and not as a violation of his federal constitutional rights. Thus,

he failed to allow the state courts the opportunity to resolve the federal nature

of his claim.5 Therefore, this claim is unexhausted and procedurally barred.

Petitioner has failed to show cause to excuse the procedural default or resulting

prejudice. Nor has Petitioner shown that a fundamental miscarriage of justice

would result if the Court did not address the claim on the merits. Thus, the

claim is due to be denied.

Moreover, whether the state court violated state law regarding the

closure of the courtroom to the public is purely an issue of state law that is not

cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68

(1991) (“[I]t is not the province of a federal habeas court to reexamine state-

court determinations on state-law questions. In conducting habeas review, a

federal court is limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.”). And even assuming

Petitioner properly presented an issue of federal constitutional dimension, the

5 Notably, in the Petition, the only reference to federal law is in the title of this ground;

the substance of Ground Three only addresses state law.

claim is without merit. Considering the evidence of Petitioner’s guilt, it cannot

be said that the outcome of his case would have been different had the trial

court not closed the courtroom to the public during McHellon’s testimony.6 The

alleged error 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) (internal

quotations and citation omitted). Petitioner is not entitled to federal habeas

relief on Ground Three.

D. Ground Four

According to Petitioner, the “cumulative errors” in his trial violated his

Sixth and Fourteenth Amendment rights. Doc. 1 at 19 (emphasis and

capitalization omitted). He argues that his “case boiled down to a credibility

contest, thus heightening the effect and importance of each error detailed.” Id.

Respondents argue that the “claim is unexhausted due to Petitioner’s failure to

fairly present any federal constitutional basis for his claims in grounds one, two

and three in the trial court or on direct appeal of his judgment and sentence.”

6 “Out of an abundance of caution” and in an effort to “not draw undue attention to the

fact that people are being removed from the courtroom,” the trial judge ordered that

the courtroom be cleared for the state’s opening statement (the defense reserved until

immediately prior to his case in chief) and McHellon’s testimony; McHellon was the

state’s first witness. See Ex. B4 at 217-21, 224.

Doc. 19 at 16 (record citations omitted).7 Respondents also address the claim on

the merits. Id. at 49.

Assuming this claim is properly exhausted, the Court finds it has no

merit. As explained herein, none of Petitioner’s individual claims warrant relief;

thus, there is nothing to accumulate. See Morris v. Sec’y, Dep’t of Corr., 677

F.3d 1117, 1132 (11th Cir. 2012). The alleged errors, neither individually nor

cumulatively, deprived Petitioner of a fair trial or due process. Considering the

record, the Court finds that Petitioner is not entitled to federal habeas relief on

Ground Four.

E. Ground Five

According to Petitioner, his trial counsel was ineffective for failing to

object to the state’s closing argument “which used Petitioner’s courtroom

presence to discredit his testimony and bolster the [state’s] witnesses’

testimony,” in violation of Petitioner’s Sixth and Fourteenth Amendment

rights. Doc. 1 at 22 (emphasis and capitalization omitted). Respondents contend

that the claim is unexhausted because Petitioner raised it in his postconviction

motion filed pursuant to Florida Rule of Criminal Procedure 3.850, but he failed

7 Petitioner raised the cumulative error claim in his Petition before filing the

Supplement. The Court, however, considers all grounds raised in addressing this

claim.

to address it on appeal of the denial of his motion. Doc. 19 at 17-19. Respondents

also address the claim on the merits. See id. at 50-51.

In denying this claim, the state postconviction court found as follows:

Defendant next claims that counsel was

ineffective in failing to object to comments made by the

prosecutor during closing argument. He alleges that if

counsel had objected, the outcome of his trial likely

would have been different.

A prosecutor’s statements during closing

argument require reversal only if the comments are

both improper and prejudicial to a substantial right of

the defendant. United States v. Jacoby, 955 F.2d 1527,

1541 (11th Cir. 1992). Such alleged misconduct must

be reviewed in light of the particular facts of the case

and in the context of the entire record. Id. at 1541.

Under Florida law, a prosecutor’s statements are to be

weighed against record evidence, and reversal is

warranted only when there is no support for them in

the record. Roundtree v. State, 229 So. 2d 281 (Fla. 1st

DCA 1969), appeal dism., 242 So. 2d 136 (Fla. 1970).

Each comment alleged to be improper is analyzed

below.

. . . .

Comment #7:

[PROSECUTOR]: Does his

testimony agree with the other evidence

and other testimony in this case? Well, his

testimony agrees with what he wants it to

and then it conflicts with what he wants it

to.

. . . .

[PROSECUTOR]: Admit what you

can’t deny and deny what you can’t admit.

He’s different, also, in one other important

respect.

Remember that every witness who

paraded through here he got a preview. He

got to see it. He got to listen. He admitted

what he can’t deny. They pointed him out.

It was his car. It was his phone. He denies

what he can’t admit. He denies shooting

the victim. He denies that he didn’t know

[sic] how that gun, the murder weapon,

got into a Crown Royal bag but supposedly

he was being threatened with it all the

time.

Defendant alleges that counsel should have

objected to these comments because they “suggested

[Defendant] tailored his testimony after listening to

the witnesses testify” and inferred he “was making up

a defense as he listened to witnesses[.]”

The Court finds that the prosecutor’s comments

were entirely proper. See Portuondo v. Agard, 529 U.S.

61 (2000) (Prosecutor’s comments during summation,

calling jury’s attention to fact that petitioner had

opportunity to hear other witnesses testify and to

tailor his testimony, did not unlawfully burden his

right to be present at trial, to be confronted with

witnesses, or to testify on his own behalf and did not

violate his right to due process). If counsel had

objected to the comment, the objection would have

been overruled. As such, the Court finds that

Defendant has failed to meet either the performance

or the prejudice prong of the Strickland test regarding

counsel’s failure to object to the comment.

. . . .

Ground Eight is without merit in its entirety.

Ex. C1 at 28, 34-35, 40. Petitioner appealed, and the First DCA per curiam

affirmed the denial of his Rule 3.850 motion without issuing a written opinion.

Ex. C4. Petitioner requested rehearing, clarification, or issuance of a written

opinion, Ex. C5, which was denied, Ex. C6.

To the extent Petitioner properly exhausted this claim and the First DCA

adjudicated the claim on the merits, this Court defers to the state court’s

adjudication. 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 is not entitled to federal habeas relief on this

claim.

Even assuming the state court’s adjudication is not entitled to deference,

the claim has no merit.

[W]e see no reason to depart from the practice of

treating testifying defendants the same as other

witnesses. A witness’s ability to hear prior testimony

and to tailor his account accordingly, and the threat

that ability presents to the integrity of the trial, are no

different when it is the defendant doing the listening.

Allowing comment upon the fact that a defendant’s

presence in the courtroom provides him a unique

opportunity to tailor his testimony is appropriate—

and indeed, given the inability to sequester the

defendant, sometimes essential—to the central

function of the trial, which is to discover the truth.

Portuondo, 529 U.S. at 73. Trial counsel did not render ineffective assistance by

failing to make a meritless objection. And even assuming deficient performance,

Petitioner has not shown prejudice. He fails to show a reasonable probability

exists that but for counsel’s alleged deficiency, the outcome of his trial would

have been different. Thus, Ground Five is due to be denied.

F. Ground Six8

Petitioner claims that his trial counsel was ineffective for failing to

subpoena an exculpatory witness, Colette Everson, in violation of his Sixth and

Fourteenth Amendment rights. Doc. 17 at 1. Petitioner asserts that trial

counsel requested a new trial at a sidebar during the trial because the trial

court erroneously denied the defense’s request to allow Everson to testify

telephonically. Id.9 Petitioner argues that the issue arose in the first place

because his trial counsel was ineffective for failing to timely subpoena Everson.

Id. at 2. He further argues that, as an alternative to her testifying, counsel also

failed to admit Everson’s deposition into evidence. Id. He acknowledges that he

did not previously raise this claim in state court, and he requests this Court

consider the claim under the exception outlined in Martinez, “because [he] did

8 Petitioner refers to this Ground as Ground A. Doc. 17 at 1.

9 See Ex. B5 at 541-46 (discussion regarding Everson testifying telephonically).

not have professional legal representation during his collateral attack in state

proceedings.” Id. at 3.

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.

Petitioner fails to allege the substance of Everson’s testimony.10 Thus,

this claim is entirely speculative as he fails to explain how her testimony would

have affected the outcome of his trial—especially in light of the evidence

10 Nor did defense counsel provide any detail of Everson’s proposed testimony. See Ex.

B5 at 542 (defense counsel stating, “I do feel she is somewhat vital to the defense.”)

presented. Thus, even assuming deficient performance,11 Petitioner has not

shown prejudice. He has failed to show a reasonable probability exists that but

for counsel’s alleged error, the outcome of his trial would have been different.

As such, the Court finds this claim is not substantial and is due to be denied.

G. Ground Seven12

Petitioner argues that his trial counsel was ineffective for not moving for

a mistrial after the state’s witness Michelle Brown made an “impermissible and

unreliable in court identification” of Petitioner. Doc. 17 at 3 (emphasis and

capitalization omitted). Petitioner contends that during her pretrial deposition,

Ms. Brown testified that she “‘didn’t get a good look’” at the person who

committed the murder, and she generally described him as “being ‘a little

darker’ than her with ‘little twist things’ in his hair.” Id. at 4. Also during the

police investigation, Ms. Brown “picked out someone other than Petitioner” in

a photo lineup. Id.

Petitioner claims that more than six months passed between the murder

and his trial, and “he’d been deprived of direct contact with the sun which

11 After hearing defense counsel’s explanation and the state’s contention that it had

difficulty locating Everson for deposition, the trial judge stated, “That should not be a

reflection . . . of Mr. Peeler’s counsel in this case or frankly the state. Both sides have

performed at a very high level. Both have performed at a very high professional level

and Mr. Peeler has enjoyed the benefit of legal representation in a manner that is

consistent with the highest standard that the bar can offer.” Ex. B5 at 543-44.

12 Petitioner refers to this Ground as Ground B. Doc. 17 at 3.

naturally made Petitioner even lighter than he was six months prior.” Id.

According to Petitioner, “it is reasonable to conclude that where Ms. Brown’s

pre[trial] identification of someone other than Petitioner, during which time

[Petitioner’s] appearance was actually closer to the general description she had

given merely three months prior, renders her resulting in-court identification

unreliable where his appearance had changed considerably and even more time

had lapsed between the alleged crime and the actual confrontation.” Id.

Petitioner acknowledges that he did not previously raise this claim in state

court, and he requests this Court consider the claim under the exception

outlined in Martinez, “because [he] did not have professional legal

representation during [his] collateral attack in state proceedings.” Id. at 6.

At trial, Ms. Brown testified. See Ex. B4 at 323-48. She identified

Petitioner as the shooter and described the car he was driving on the day of the

shooting. She explained what she observed that day. She also recognized that

she previously picked out a photograph of a suspect that looked similar to the

shooter. Defense counsel cross-examined Ms. Brown on the fact that she had

previously picked out a different suspect from a photospread and that Petitioner

did not look the same at trial as he did on the day of the shooting.

There was no basis for defense counsel to move for a mistrial based on

Ms. Brown’s in-court identification of Petitioner. Ms. Brown testified that she

could identify the shooter during trial based on her recollection, and she

identified Petitioner. The jury was left to consider Ms. Brown’s credibility, and

Petitioner’s counsel argued as much in her closing:

You heard from Michelle Brown, Ms. Brown,

about 13 years old. She, too, was shown a photospread

in this case just a few weeks after this happened and

was not able to identify my client out of that

photospread, but she comes in here today - - I’m sorry.

She comes in here yesterday just over six months later,

takes the stand and in open court identifies my client

as the person she saw that day.

The state keeps expressing to you and keeps

harping on the fact that my client looks so different.

Wouldn’t it make sense, ladies and gentlemen, that

having seen my client in the photospread three weeks

after - - approximately three weeks after this

happened and not selecting him would be a more

accurate identification than this lady - - than this

young girl sitting on the stand selecting the only young

black male in the courtroom, the only person on trial

who the state has been arguing looks so different than

the day in question and she stands up and points to

him sitting right next to his attorney?

Please consider that identification and compare

it to the one that she made that she misidentified a few

weeks after this happened. Reasonable doubt, ladies

and gentlemen.

Ex. B6 at 682-83.

Even assuming defense counsel was deficient in the manner Petitioner

suggests, Petitioner has not shown prejudice. He has not shown a reasonable

probability exists that but for counsel’s alleged error the result of his trial would

have been different. Thus, Ground Seven is not substantial and due to be

denied.

H. Ground Eight13

Petitioner argues that the postconviction court erred by not providing him

with an opportunity to amend his Rule 3.850 motion before denying his claims

as insufficiently pled. Doc. 17 at 6. He contends that this resulted in a denial of

his due process rights. Id. at 6-7. He argues that the state court’s duty to provide

him an opportunity to amend is set forth in Spera v. State, 971 So. 2d 754 (Fla.

2007), which he likens to the Supreme Court’s admonition in Sanders v. United

States, 373 U.S. 1 (1963), advising “lower federal courts to exercise caution

before dismissing petitions, especially ones prepared without assistance, that

instead might be amended to state valid grounds for relief.” Doc. 17 at 6-7; see

Doc. 27 at 11. Respondents assert that this “claim is not cognizable for federal

habeas review” because it does not affect the legality of Petitioner’s

imprisonment and is based on state law. Doc. 19 at 24-25. Alternatively,

Respondents argue that the claim is without merit. Id. at 58-60.

In Petitioner’s Rule 3.850 proceeding, the only ground that the state court

found to be insufficiently pled was ground two; the court, however, also

13 Petitioner refers to this Ground as Ground C. Doc. 17 at 6.

addressed the ground on the merits. All other grounds were found to be either

procedurally barred or without merit.

As to ground two, the postconviction court ruled as follows:

Ground Two:

1. Relevant Facts:

Jury selection was held on Monday and

Tuesday, April 12-13, 2010. At the conclusion of jury

selection on Tuesday, defense counsel informed the

Court that he had been made aware on the previous

Friday that State witness Rishod McHellon had been

receiving threatening telephone calls from a blocked

number, and he had not returned the prosecutor’s

phone messages because he was “quite frankly scared

to death.” The caller had phoned multiple times

threatening “in no uncertain terms that there would

be consequences for him if he were to testify in this

case.” The prosecutor stated that he had no basis to

link those calls to Defendant and would not be eliciting

testimony about the threatening calls during

McHellon’s direct examination.

In response, defense counsel made the following

comment:

[DEFENSE COUNSEL]: I know

another thing [the prosecutor] was

wanting to do is clear the courtroom at the

time . . . that witness takes the stand[.] . .

. For the record I would also have an

objection to that. . . . I think that . . . his

testimony might be bolstered and the

weight of it just heightened if the

courtroom is cleared.

The Court ruled that “[o]ut of an abundance of

caution,” the courtroom would be cleared during

opening statements as well as during McHellon’s

testimony - the State’s first witness. “I believe we can

do that in a manner, however, that would not draw

undue attention to the fact that people are being

removed from the courtroom depending on how many

people are here[.]”

As detailed in the Underlying Facts of the Crime

supra, McHellon testified on direct examination that

he watched Defendant shoot Colon-Rivera. On cross-

examination, defense counsel twice elicited that

McHellon wanted Defendant held accountable for

Colon-Rivera’s death.

The prosecutor argued that defense counsel’s

cross-examination had created an inference that

McHellon was testifying willingly for the purpose of

offering fabricated testimony to get Defendant

convicted. The Court agreed, finding that defense

counsel’s questions on cross examination had opened

the door to testimony about the phone threats.

However, the prosecutor was still precluded from

attempting to draw an inference that the calls had

been made by Defendant.

The prosecutor then elicited on redirect

examination that McHellon had not wanted to testify

because he had received threatening calls from an

unknown person during the prior two weeks. He was

testifying only because he was under subpoena.

After Defendant was convicted as charged,

defense counsel filed a motion for new trial in which

he alleged that the Court had erred in allowing the

State to close the courtroom during McHellon’s

testimony, arguing that it had added greater weight to

his testimony. The motion was denied.

2. The Claim:

Defendant claims in Ground Two of his

postconviction motion that counsel was ineffective in

failing to “offer up a proper objection” to the closure of

the courtroom for McHellon’s testimony. He claims

that counsel should have argued that the threats were

hearsay and that there was no evidence to corroborate

them. He also alleges that counsel should have

objected to the closure because the State was unable

to show that 1) closure was necessary to prevent a

serious and imminent threat to the administration of

justice; 2) that there was no alternative available other

than a change of venue; or 3) that closure would not be

broader than necessary to accomplish the purpose.

Defendant alleges that if counsel had put forth these

specific objections, “the trial court would likely have

prohibited the highly prejudicial inferences regarding

threats.” Additionally, the State would not have been

able to meet the three-prong test for closure, and the

courtroom would not have been closed. Lastly, he

urges that if counsel had preserved the issue for direct

appeal, he “would have prevailed.”

Initially the Court finds that Defendant’s claim

is facially insufficient because he fails to allege there

is a reasonable probability that but for counsel’s

omissions, the outcome of his trial would have been

different. See, e.g., Christie v. State, 737 So. 2d 1157

(Fla. 1st DCA 1999) (Postconviction claim that trial

counsel was ineffective in failing to adequately advise

defendant was legally insufficient absent allegations

that outcome of trial would have been different but for

alleged ineffectiveness of counsel). The Court further

finds that, as explained infra, Defendant is not

entitled to amend this claim because it cannot

reasonably be amended in good faith to state a

sufficient claim. See Spera v. State, 971 So. 2d 754, 762

(Fla. 2007) (Permitting postconviction movants to

amend claims “only if they can be amended in good

faith”).

The Court finds that McHellon’s testimony

about the threats was not hearsay. Therefore if

counsel had objected to testimony about the threats as

uncorroborated hearsay, such an objection would have

been overruled.

Defendant also alleges that counsel was

ineffective in failing to ask the Court to make the

findings required by Miami Herald Publishing Co. v.

Lewis, 426 So. 2d 1 (Fla. 1982).

Lewis articulated the prevailing test in Florida

for closure of judicial proceedings, concluding that

closure is justified where:

1. Closure is necessary to prevent a

serious and imminent threat to the

administration of justice;

2. No alternatives are available,

other than change of venue, which would

protect a defendant’s right to a fair trial;

and

3. Closure would be effective in

protecting the rights of the accused,

without being broader than necessary to

accomplish this purpose.

426 So.2d at 6; see also Bundy v. State,

455 So.2d 330, 338 (Fla. 1984)

(recognizing adoption of test in Lewis),

abrogated on other grounds by Fenelon v.

State, 594 So.2d 292 (Fla.1992).

Simpson v. State, 3 So. 3d 1135, 1145 (Fla. 2009), cert.

denied, 558 U.S. 839 (2009).

Lewis was an appeal by the media from a ruling

of the trial court that closed a pretrial hearing on a

motion to suppress. The supreme court held there is

no First Amendment protection of the public’s and

press’s rights to attend a pretrial suppression hearing,

and the court summarized guidelines for trial judges

to use in applying the three-pronged standard to

determine whether closure is appropriate.

Lewis is easily distinguishable from Defendant’s

case, which involved neither a media issue no[r] a

pretrial hearing. The reason for closing the courtroom

during a brief portion of Defendant’s trial has long-

since been recognized as valid. See. e.g., United States

v. Eisner, 533 F.2d 987, 993-94 (6th Cir. 1976) (To

protect witness who feared testifying in public), cert.

denied, 429 U.S. 919 (1976); United States ex rel.

Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969) (To

protect witness who was afraid of testifying), cert.

denied, 397 U.S. 957 (1970); Orlando v. Follette, 384

U.S. 1008 (1966) (To protect witnesses from

intimidation). Even where the closure is total and the

press, family members and general public are all

excluded, but only for a limited and justifiable purpose

and period of time, the public trial guarantee has been

honored. See, e.g., United States v. Hernandez, 608

F.2d 741, 747-48 (9th Cir. 1979) (To protect witness

and his family where safety threatened). All of these

federal cases have been cited with approval by at least

one Florida appellate court. See Williams v. State, 736

So. 2d 699, 703 (Fla. 4th DCA 1999), receded from on

other grounds Alvarez v. State, 827 So. 2d 269 (Fla.

4th DCA 2002), rev. denied, 845 So. 2d 887 (Fla. 2003).

In sum, the Court finds that counsel was not

ineffective in failing to ask the Court to make the

findings required by Lewis because Lewis was not

applicable to the facts of Defendant’s case.

Furthermore, Defendant has failed to show any

prejudice in counsel’s failure to ask the Court to make

the Lewis findings because the reason for the closure

in Defendant’s case was legally valid.

Lastly, as to Defendant’s claim that he “would

have prevailed” if counsel had preserved the issue for

direct appeal, the Court notes that Defendant did

indeed raise this issue on direct appeal, and the First

District implicitly found it to be without merit when it

affirmed his conviction and sentence without opinion.

Issues that could have been, should have been, or were

raised on direct appeal may not be raised in a motion

for postconviction relief. Zeigler v. State, 452 So. 2d

537 (Fla. 1984). Proceedings under Rule 3.850 are not

to be used as a second appeal. Medina v. State, 573 So.

2d 293 (Fla. 1990). See also Freeman v. State, 761 So.

2d 1055, 1067 (Fla. 2000) (Claims that should have or

could have been raised on direct appeal cannot be

relitigated under the guise of ineffective assistance of

counsel); Jessie v. State, 726 So. 2d 356, 356-57 (Fla.

5th DCA 1999) (“This argument appears to be an

attempt to re-litigate substantive matters which

should have been presented on direct appeal, under

the guise of ineffective assistance of counsel.”) As such,

the Court finds that this last claim in Ground Two is

procedurally barred.

Ex. C1 at 12-16 (internal record citations and footnote omitted). On appeal,

Petitioner argued that the postconviction court erred by summarily denying his

Rule 3.850 motion without providing him an opportunity to amend. See Ex. C2.

The First DCA per curiam affirmed the denial of Petitioner’s postconviction

motion without issuing a written opinion. Ex. C4. Petitioner requested

rehearing, clarification, or issuance of a written opinion, Ex. C5, which was

denied, Ex. C6.

Insofar as the First DCA adjudicated the claim on the merits, this Court

addresses the 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 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.

Alternatively, the Court finds the claim is without merit. Failing to

provide Petitioner with an opportunity to amend his postconviction motion does

not automatically rise to the level of a violation of his federal due process rights.

Regardless, the postconviction court found that Petitioner was not entitled to

amend his ground two “because it cannot reasonably be amended in good faith

to state a sufficient claim.” And the postconviction court addressed the claim on

the merits. Upon review, this Court finds that Ground Eight is due to be denied.

In light of the foregoing, it is

ORDERED:

1. The Petition (Doc. 1) and Supplement (Doc. 17) are 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.'4

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 27** day of March,

2023.

Ww TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 3/22

C:

Michael A. Peeler, #J41513

Counsel of Record

14 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.

40