Opinion

Brown v. Secretary, Florida Department of Corrections (Duval County)

Court: District Court, M.D. Florida
Filed: May 15, 2023
Cited by: 0 cases
Authority: More cited than 19.9%

setting forth the Martinez requirements

How later courts described this case

setting forth the Martinez requirements
“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”
noting that “a defendant does not waive an ineffective assistance of counsel claim simply by entering a plea”
stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WILLIAM HENRY BROWN,

Petitioner,

v. Case No. 3:20-cv-1027-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner William Henry Brown, an inmate of the Florida penal

system, initiated this action on September 9, 2020,1 by filing a Petition for

Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 Brown

proceeds on an amended petition (Amended Petition; Doc. 8), filed on

February 26, 2021. In the Amended Petition, Brown challenges a 2014 state

court (Duval County, Florida) judgment of conviction for second-degree

murder and sale or possession with intent to sell cannabis while armed. He

raises eight grounds for relief. See Amended Petition at 4-20. Respondents

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

submitted a memorandum in opposition to the Amended Petition. See

Response (Doc. 13). They also submitted exhibits. See Docs. 13-1 through

13-3. Brown filed a brief in reply. See Reply (Doc. 21). He also submitted

exhibits. See Doc. 21-1. This action is ripe for review.

II. Relevant Procedural History

On March 22, 2012, the State of Florida charged Brown by indictment

with first-degree murder (count one) and sale or possession with intent to sell

cannabis while armed (count two). Doc. 13-1 at 28-30. On March 8, 2013,

Brown, with the assistance of counsel, filed a Motion for Determination of

Immunity from Prosecution and Motion to Dismiss pursuant to Florida

Statutes sections 776.032(1) and 776.013(3).3 Id. at 88-90. Following a

hearing, the trial court denied the motion. Id. at 95-105. Brown filed a

Petition for Writ of Prohibition with the First District Court of Appeal (First

DCA). Id. at 266-73. The State filed a response. Id. at 429-45. On April 22,

2014, the First DCA denied relief in a written opinion. Id. at 447-50.

Brown proceeded to a jury trial. Before the jury returned a verdict, on

August 15, 2014, Brown entered a guilty plea to second-degree murder, a

3 Section 776.032, Florida’s Stand Your Ground law, provides immunity from

criminal prosecution to a person who uses or threatens to use force as permitted in

sections 776.012, 776.013, or 776.031.

lesser included offense of count one, and to the drug charge in count two. Id.

at 144-45. On August 19, 2014, the trial court sentenced Brown to a thirty-

five-year term of imprisonment as to count one and a concurrent fifteen-year

term of imprisonment as to count two. Id. at 146-53.

On direct appeal, Brown, with the benefit of counsel, filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967). Doc. 13-2 at 1048-57.

Brown subsequently filed a pro se initial brief, arguing counsel was

ineffective when she: moved to dismiss the charges pursuant to section

776.013(3) (ground one); failed to object to the State’s factual basis at

sentencing (ground two); and failed to subpoena an eyewitness (ground

three). Id. at 1059-83. He also alleged the trial court erred when it admitted

the victim’s statements as excited utterances (ground four). Id. Brown filed a

notice of voluntary dismissal, id. at 1085-86, and on December 8, 2015, the

First DCA dismissed Brown’s direct appeal, id. at 1088.

On November 18, 2016, Brown filed a pro se state petition for writ of

habeas corpus, alleging appellate counsel was ineffective when she failed to

argue Stand Your Ground immunity pursuant to Florida Statues section

776.012(1). Id. at 1155-68. The First DCA denied the petition on the merits

on March 8, 2017. Id. at 1205.

On September 20, 2018, Brown filed a pro se motion for postconviction

relief pursuant to Florida Rule of Criminal Procedure 3.850. Doc. 13-3 at 4-

38. In the Rule 3.850 Motion, Brown alleged: counsel was ineffective when

she failed to argue Stand Your Ground immunity pursuant to section

776.012(1) (ground one); the prosecutor suppressed material, exculpatory

impeachment evidence (ground two); the trial court erred when it admitted

the victim’s statements as excited utterances (ground three); Brown entered

an involuntary plea because he did not know intent to cause death

constituted an element of second-degree murder (ground four); and counsel

was ineffective when she failed to impeach a witness with prior inconsistent

statements (ground five). Id. Brown requested leave to amend his Rule 3.850

Motion, and on July 17, 2017, the postconviction court granted Brown’s

request, directing him to file an amended motion “within the prescribed

timeframe under Rule 3.850(b).” Id. at 454-55. Brown failed to file an

amended motion within that time period, and on January 9, 2018, the

postconviction court denied relief on all grounds raised in the Rule 3.850

Motion. Id. at 456-62. The First DCA affirmed the postconviction court’s

denial of relief on April 30, 2019, id. at 678, and issued the mandate on May

28, 2019, id. at 681.

On January 10, 2018, Brown filed an amended Rule 3.850 Motion,

raising as grounds one through five substantially similar claims to those

raised in his Rule 3.850 Motion. Id. at 591-616. Brown also alleged: the State

violated his right to due process when it obtained an indictment based on an

illegally obtained confession (ground six), and the prosecutor knowingly

presented or failed to correct false testimony in violation of Giglio v. United

States, 405 U.S. 150 (1972) (ground seven). Id. at 616-19. On February 5,

2018, the postconviction court dismissed grounds one through five for lack of

jurisdiction and grounds six and seven as untimely filed. Id. at 683-86. On

April 30, 2019, the First DCA per curiam affirmed the dismissal, id. at 784,

and on May 28, 2019, issued the mandate, id. at 787. Brown subsequently

filed a second amended Rule 3.850 Motion on December 18, 2018, id. at 790-

807, and a third amended Rule 3.850 Motion on January 9, 2019, id. at 969-

86. In the second and third amended Rule 3.850 Motions, Brown raised one

claim for relief, arguing he was entitled to a new Stand Your Ground

immunity hearing based on an amendment to section 776.032. Id. at 794-805,

973-84. The postconviction court dismissed the second and third amended

Rule 3.850 Motions, determining it lacked jurisdiction to consider them

pending the appeal of the postconviction court’s February 5th dismissal of

Brown’s amended Rule 3.850 Motion. Id. at 1149-50. Brown appealed, and on

September 9, 2019, the First DCA reversed and remanded for further

proceedings, finding the postconviction court had jurisdiction to rule on

Brown’s second and third amended Rule 3.850 Motions “where the issue

raised . . . was unrelated to the issues raised in [Brown’s] prior postconviction

motion.” Id. at 1221. On remand, the postconviction court denied relief. Id. at

1226-29. The First DCA per curiam affirmed the denial of relief on June 23,

2020, id. at 1256, and issued the mandate on July 21, 2020, id. at 1259.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See 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.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016). “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.” Schriro, 550 U.S. at

474. The pertinent facts of this case are fully developed in the record before

the Court. Because the Court can “adequately assess [Brown’s] claim[s]

without further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal petition for habeas corpus. 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) (quotation marks omitted)). As such, federal

habeas review of final state court decisions is “‘greatly circumscribed’ and

‘highly deferential.’” Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th

Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state

court decision, if any, that adjudicated the claim 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 a written opinion explaining its rationale in order 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 United

States Supreme Court has instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision,

such as persuasive alternative grounds that were briefed or argued to the

higher court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d)

bars relitigation of the claim unless the state court’s decision (1) “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) “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);

Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited scope

of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v.

Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d

389 (2000), § 2254(d)(1) consists of two distinct

clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows

for relief only “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.” Id.

at 413, 120 S. Ct. at 1523 (plurality opinion). The

“unreasonable application” clause allows for relief

only “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.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield

v. Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because

the federal habeas court would have reached a

different conclusion in the first instance.’” Titlow, 571

U.S. at ---, 134 S. Ct. at 15 (quoting Wood v. Allen,

558 U.S. 290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d

738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

examination of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting

Richter, 562 U.S. at 102-03). This standard is “meant to be” a “difficult” one

to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s

claims were adjudicated on the merits in the state courts, they must be

evaluated under 28 U.S.C. § 2254(d).

B. Ineffective Assistance of Trial and Appellate 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), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. 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, 104

S. Ct. 2052. 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, 104 S. Ct.

2052.

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, 104 S. Ct.

2052. It is not enough “to show that the errors had

some conceivable effect on the outcome of the

proceeding.” Id., at 693, 104 S. Ct. 2052. 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, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “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)). As stated in Strickland: “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.

Claims of ineffective assistance of appellate counsel are governed by

the same standards applied to trial counsel under Strickland. See Tuomi v.

Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020); Philmore v.

McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009). The Eleventh Circuit has

instructed:

In assessing an appellate attorney’s performance, we

are mindful that “the Sixth Amendment does not

require appellate advocates to raise every non-

frivolous issue.” Id. at 1130-31.[4] Rather, an effective

attorney will weed out weaker arguments, even

though they may have merit. See id. at 1131. In order

to establish prejudice, we must first review the

merits of the omitted claim. See id. at 1132. Counsel’s

performance will be deemed prejudicial if we find

that “the neglected claim would have a reasonable

probability of success on appeal.” Id.

Philmore, 575 F.3d at 1264. Thus, appellate counsel’s performance is

prejudicial if the omitted claim would have a reasonable probability of

success on appeal. Id. at 1265.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation

is a most deferential one.” Richter, 562 U.S. at ---,

131 S. Ct. at 788. 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

4 Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991).

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, 129 S. Ct.

1411, 1420, 173 L.Ed.2d 251 (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 ---,

131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). 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).

VI. Findings of Fact and Conclusions of Law

A. Grounds One and Seven

1. Ground One

As Ground One, Brown alleges counsel was ineffective when she failed

to assert Stand Your Ground immunity pursuant to section 776.012(1).

Amended Petition at 5. According to Brown, counsel filed a Motion for

Determination of Immunity from Prosecution and Motion to Dismiss under

section 776.013(3), which provides for immunity only if the person who used

defensive force was not engaged in criminal activity. Id. at 4-5. He states that

following a hearing, the trial court denied immunity because Brown “was

engaged in [the] unlawful activity of selling drugs when he acted in self-

defense.” Id. at 5. Brown argues counsel should have relied on section

776.012(1), which provides for immunity even if the person who used

defensive force was engaged in unlawful activity. Id. He contends if counsel

had filed a motion pursuant to section 776.012(1), it would have resulted in a

different outcome at the Stand Your Ground hearing. Id. at 6.

Respondents argue that the claim in Ground One is procedurally

barred because when Brown entered a guilty plea, he waived all claims of

ineffective assistance of counsel not related to the plea and circumstances

surrounding the plea. Response at 21-22. However, “an ineffective assistance

of counsel claim that goes to the voluntary nature of the defendant’s plea is

not waived ‘simply by entering a plea’ because this is contrary to Hill v.

Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). . . . Rather, a

defendant is entitled to adequate representation while considering whether

to make a voluntary plea.” Martinez v. Sec’y, Fla. Dep’t of Corr., 684 F. App’x

915, 922 (11th Cir. 2017) (internal citation omitted);5 see Arvelo v. Sec’y, Fla.

Dep’t of Corr., 788 F.3d 1345, 1348 (11th Cir. 2015) (noting that “a defendant

does not waive an ineffective assistance of counsel claim simply by entering a

plea”); Goggins v. Sec’y, Dep’t of Corr., No. 20-11033, 2022 WL 433219, at *3

(11th Cir. Feb. 14, 2022) (finding error where the district court determined a

petitioner’s ineffective assistance of counsel claims were outside the scope of

federal habeas review because his guilty plea resulted in a complete waiver of

his claims). Here, Brown raised a substantially similar claim as ground one of

his Rule 3.850 Motion, where he alleged if counsel had filed a motion under

section 776.012(1), a reasonable probability exists that the trial court would

have granted him immunity and he “would not have pleaded guilty to second

degree murder.” Doc. 13-3 at 13 (emphasis omitted). He also alleged counsel’s

actions rendered his plea involuntary. Id. at 14-15. Liberally construed, the

claim in Ground One attacks the voluntariness of Brown’s guilty plea.

Accordingly, the Court declines to apply the procedural bar.6

5 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on

a particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir.

2022); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions

are not considered binding precedent, but they may be cited as persuasive

authority.”).

6 For the same reason, the Court will not apply the procedural bar to Grounds

Two and Five as Respondents request. Response at 24-25, 38-39.

The postconviction court denied relief on ground one of his Rule 3.850

Motion, stating in pertinent part:

The Defendant contends that counsel was

ineffective for failing to argue his stand-your-ground

claim under the correct statute and that, had the

correct law been presented, the Court would have

granted him immunity from prosecution.

There are three statutes under which a

defendant may claim self-defense and be granted

immunity under section 776.032, Florida Statutes:

namely, sections 776.012, 776.013, and 776.031,

Florida Statutes. The versions [of] these statutes in

effect at the time of the crime in this case, October

28, 2011, were different from the current versions.

While section 776.013(3), Florida Statutes (2011),

required that a person not be engaged in unlawful

activity when using deadly force to protect a

residence, section 776.012, Florida Statutes (2011),

contained no requirement that a person using deadly

force to protect himself or another from death or

great bodily harm not be engaged in unlawful activity

(the statute has since been amended to include this

requirement). There are a number of decisions

interpreting the earlier version of section 776.012 to

allow a defendant to claim self-defense even where he

was engaged in criminal activity at the time he

resorted to deadly force. See, e.g., Garrett v. State,

148 So. 3d 466 (Fla. 1st DCA 2014); Andujar-Ruiz v.

State, 205 So. 3d 803 (Fla. 2d DCA 2016).

The Defendant alleges counsel was ineffective

for failing to make the argument that he was not

precluded from using deadly force even though, at the

time of the shooting, he was engaged in a marijuana

sales operation and was apparently trying to prevent

the theft of his product. He is correct that, under

certain circumstances, he could have claimed the

right to self-defense under section 776.012, Florida

Statutes (2011), even while engaged in the drug

trade. Counsel may arguably have been ineffective on

this point.

However, the Defendant cannot demonstrate

prejudice. Following the stand-your-ground hearing,

the Court wrote a lengthy order denying immunity

from prosecution. While it based its order in part on

its finding that the Defendant was not entitled to

relief because he was engaged in criminal activity, it

also made the finding that, even if he was not so

engaged, the Defendant failed to prove he was acting

in self-defense. The Court found he was not a credible

witness, but instead had changed his story numerous

times and made claims at various times that he could

not remember what happened. The Court concluded

he had come to the scene of the crime armed and

prepared for a “Wild West” shoot-out. Thus even had

counsel brought up cases under section 776.012

allowing a self-defense claim in spite of his illegal

activity, there is not a reasonable probability the

Court would have found the Defendant to be a

credible witness and granted immunity.

Id. at 457-59 (record citation omitted). The First DCA per curiam affirmed

the postconviction court’s denial of relief without a written opinion. Id. at

678.

To the extent that the First DCA decided the claim on the merits,7 the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Brown is not

entitled to relief on the basis of this claim.

Even assuming the appellate court’s adjudication of the claim is not

entitled to deference, Brown’s claim is without merit because the record

supports the postconviction court’s conclusion. Under Florida’s Stand Your

Ground law, a defendant can assert immunity from criminal prosecution if he

uses force as permitted in sections 776.012, 776.013, or 776.031. Fla. Stat. §

776.032(1) (2011). Section 776.012(1) (2011) provided that “a person is

justified in the use of deadly force and does not have a duty to retreat if . . .

[h]e or she reasonably believes that such force is necessary to prevent

7 Throughout this Order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the

appellate court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.

imminent death or great bodily harm to himself or herself or another or to

prevent the imminent commission of a forcible felony.” However, section

776.013(3) (2011) specified,

A person who is not engaged in an unlawful activity

and who is attacked in any other place where he or

she has a right to be has no duty to retreat and has

the right to stand his or her ground and meet force

with force, including deadly force if he or she

reasonably believes it is necessary to do so to prevent

death or great bodily harm to himself or herself or

another or to prevent the commission of a forcible

felony.

At the time that Brown committed the offenses, if a defendant raised a claim

of statutory immunity pretrial, the trial court would conduct an evidentiary

hearing to “determine whether the defendant has shown by a preponderance

of the evidence that the immunity attaches.” Peterson v. State, 983 So. 2d 27,

29 (Fla. 1st DCA 2008).

Here, the trial court found that Brown was not entitled to immunity

because he was engaged in criminal activity when he used defensive force.

Doc. 13-1 at 103. However, it also determined that even if Brown was not

engaged in criminal activity, he “failed to establish by a preponderance of the

evidence that he was justified in using deadly force in self-defense.” Id. In

support of its conclusion, the trial court gave little weight to Brown’s

testimony because he lacked credibility, noting that he “conceded on at least

seven occasions during cross-examination that he lied to the police during his

interrogation.” Id. According to the trial court, Brown testified at the Stand

Your Ground hearing that he feared for his life because Adam Holleran

reached for a gun,8 but Brown admitted he never told police that he saw

Holleran reach for a gun. Id. at 104. Considering the trial court found in the

alternative that even if Brown was not engaged in criminal activity, Brown

did not establish entitlement to immunity, no reasonable probability exists

that the trial court would have granted immunity to Brown even if counsel

filed a motion to dismiss pursuant to section 776.012(1).9 As such, Brown

cannot demonstrate prejudice, and relief on the claim in ground one is due to

be denied. See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court

deciding an ineffective assistance claim . . . to address both components of the

inquiry if the defendant makes an insufficient showing on one.”).

8 Brown testified that the shooting occurred while Holleran and the victim

bought marijuana from him. Doc. 13-1 at 300-01, 315.

9 The Court notes that in the order, the trial court referenced section

776.012(1), stating “[p]ursuant to sections 776.032(1), 776.012(1), and 776.013(3),

Florida Statutes, [Brown] seeks statutory immunity from prosecution based on

justified use of force in self-defense, and requests that his pending charges be

dismissed.” Doc. 13-1 at 96.

2. Ground Seven

In Ground Seven, Brown raises a similar claim. He contends appellate

counsel was ineffective when she failed to argue that the trial court should

have granted immunity to Brown under section 776.012(1). Amended Petition

at 17-18. Specifically, Brown alleges that counsel filed a petition for writ of

prohibition, arguing that the trial court erred when it denied the defense’s

Motion for Determination of Immunity from Prosecution and Motion to

Dismiss filed pursuant to section 776.013(3). Id. at 17. According to Brown,

counsel should have asserted immunity under section 776.012(1), which

provided for the defensive use of force even if a person is engaged in criminal

activity. Id. at 18. Brown states if counsel had made this argument, the First

DCA would have granted the petition for writ of prohibition. Id. Brown raised

this issue in a state petition for writ of habeas corpus, Doc. 13-2 at 1161-65,

and the First DCA denied Brown’s petition on the merits, id. at 1205.

As there is a qualifying state court decision, the Court will address the

claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law,

the Court concludes that the state court’s adjudication of this claim was not

contrary to clearly established federal law, did not involve an unreasonable

application of clearly established federal law, and was not based on an

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

the state court proceedings. Therefore, Brown is not entitled to relief on the

basis of this claim.

Even assuming the appellate court’s adjudication of the claim is not

entitled to deference, Brown’s claim is without merit. For the reasons

detailed in Ground One, he fails to establish prejudice. The trial court did not

find Brown to be a credible witness. According to the trial court, Brown

admitted on multiple occasions during cross-examination that he lied to law

enforcement. Doc. 13-2 at 103. The trial court also found Brown gave

conflicting testimony about his relationship with the victim and whether he

saw Holleran reach for a gun. Id. at 104. Indeed, the record supports the trial

court’s findings. Brown admitted that his testimony at the Stand Your

Ground hearing differed from the version of events that he relayed to law

enforcement. Id. at 324-25, 331-32, 396-97. Most notably, Brown admitted

that he lied to law enforcement about shooting the victim. Id. at 391-92. On

cross-examination, the State also impeached Brown about text messages that

he sent to an acquaintance after the shooting, in which he described pouring

bleach on his hands. Id. at 382-83. Although Brown was the only witness at

the Stand Your Ground hearing, “[t]he mere fact that [] testimony appears

‘uncontradicted’ does not necessarily make it believable.” Lewis v. State, 979

So. 2d 1197, 1200 (Fla. 4th DCA 2008). Brown had the burden to prove

immunity by a preponderance of the evidence, and the trial court determined

in the alternative that he did not carry his burden. Because the evidence

supports the trial court’s determination, no reasonable probability exists that

the First DCA would have granted a writ of prohibition if counsel had argued

immunity under section 776.012(1). Accordingly, Brown is not entitled to

federal habeas relief on the claim in Ground Seven.

B. Ground Two

Next, Brown contends counsel was ineffective when she failed to

properly argue that the trial court should admit the victim’s statement to

Brian Cruz based on the “rule of completeness.” Amended Petition at 7. He

alleges counsel proffered cross-examination of Cruz, during which he testified

that the victim called him and stated “They shot me . . . Adam Holleran and

Pez[10] got into it . . . I’m going to die.” Id. at 8 (internal quotation marks

omitted). According to Brown, counsel erroneously argued that the trial court

should admit the statement under the rule of completeness because the State

10 Testimony at trial established Brown’s nickname was Pez. Doc. 13-2 at

379, 861.

had already elicited from Cruz part of the victim’s statement on direct

examination. Id. Rather, Brown maintains the State had only elicited the

victim’s statement to Holleran, not Cruz. Id. Brown asserts if counsel had

“properly argued under rule of completeness that the prosecutor had already

introduced to the [j]ury statements made by [the victim] through [] Holleran,”

the trial court would have admitted the victim’s statements to Cruz and

Brown would not have pled guilty. Id.

The Court finds Brown did not exhaust the claim raised in Ground

Two. Therefore, his claim is procedurally barred for purposes of federal

habeas review. Because any future attempt to exhaust it would be futile, the

claim is procedurally defaulted. In an effort to avoid the bar, Brown cites

Martinez v. Ryan, 566 U.S. 1 (2012), and argues that his lack of

postconviction counsel constitutes cause and prejudice to overcome the

procedural bar. Amended Petition at 21. The Eleventh Circuit has explained

the holding of Martinez as follows:

In Martinez, the U.S. Supreme Court enunciated a

narrow exception to the general rule that the lack of

an attorney or attorney error in state post-conviction

proceedings does not establish cause to excuse the

procedural default of a substantive claim. 566 U.S. at

8, 13-14, 132 S.Ct. at 1315, 1318. The Supreme

Court, however, set strict parameters on the

application of this exception. It applies only where (1)

state law requires a prisoner to raise ineffective-trial-

counsel claims during an initial collateral proceeding

and precludes those claims during direct appeal; (2)

the prisoner failed to properly raise ineffective-trial-

counsel claims during the initial collateral

proceeding; (3) the prisoner either did not have

counsel or his counsel was ineffective during those

initial state collateral proceedings; and (4) failing to

excuse the prisoner’s procedural default would result

in the loss of a “substantial” ineffective-trial-counsel

claim. Id. at 14, 132 S.Ct. at 1318; see also Arthur v.

Thomas, 739 F.3d 611, 629 (11th Cir. 2014) (setting

forth the Martinez requirements).

Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1164 (11th Cir. 2017). A

claim is substantial if the petitioner demonstrates it “has some merit.”

Martinez, 566 U.S. at 14.

Considering the record, the Court determines Brown has not shown

that the underlying ineffective assistance of counsel claim is substantial. The

rule of completeness is codified in Florida Statutes section 90.108(1), which

provides:

When a writing or recorded statement or part thereof

is introduced by a party, an adverse party may

require him or her at that time to introduce any other

part or any other writing or recorded statement that

in fairness ought to be considered

contemporaneously. An adverse party is not bound by

evidence introduced under this section.

Florida courts have applied the rule to the admission of testimony. Reese v.

State, 694 So. 2d 678, 683 (Fla. 1997). The purpose of the rule “is to avoid the

potential for creating misleading impressions by taking statements out of

context.” Pulcini v. State, 41 So. 3d 338, 348 (Fla. 4th DCA 2010). Admission

of other statements is subject to a judicial determination that they “in

fairness ought to be considered contemporaneously with the introduction of

the partial statement.” Larzelere v. State, 676 So. 2d 394, 402 (Fla. 1996)

(quotation marks and citation omitted). “General unreliability of inadmissible

evidence should be one of the court’s considerations in determining whether

fairness requires admission.” Jordan v. State, 694 So. 2d 708, 712 (Fla. 1997).

Here, on direct examination, Holleran testified that he overheard the

victim’s telephone call to Matthew Webber, during which the victim yelled

“this M.F.’er just shot me. This – he just shot me. I can’t believe he just shot

me.” Doc. 13-2 at 368. Cruz subsequently testified that he called the victim

after the shooting. Id. at 879. On cross-examination, counsel proffered the

following exchange:

Q Mr. – Mr. Cruz, during that conversation with

Mr. Register [the victim] when you asked him

what happened, he said to you they shot me,

isn’t that right?

A Yes.

Q And when you asked him who, he said to you

Adam Holleran and Pez got into it, isn’t that

right?

A No. He said – he said they shot me. He didn’t

say exactly – he said they.

. . . .

Q And isn’t it true, sir, that when you spoke with

him on that day immediately after the shooting

he said to you Adam Holleran and Pez got into

it right before he said to you I’m going to die?

A Yes.

Id. at 898-99. Based on the record, counsel did not perform deficiently when

she failed to argue that the trial court should admit the Cruz statement

under the rule of completeness because the State had already presented the

Holleran statement. The Cruz and Holleran statements occurred in separate

telephone calls from the victim to two different people. As such, the Holleran

statement by itself did not create a misleading impression.

In addition, the trial court found the Cruz statement to be unreliable.

Counsel attempted to argue the admissibility of the Cruz statement as a

dying declaration or an excited utterance. However, in evaluating its

admissibility under those exceptions, the trial court noted that the victim

made multiple, conflicting statements after the shooting but before his death.

The victim initially told law enforcement at the scene that an unknown

person robbed him of $5. Doc. 13-2 at 909, 919. After approximately eight

minutes, the victim made the Cruz statement. Id. at 920-21. The trial court

determined it would not admit the statement because it lacked reliability. Id.

at 922-23. Therefore, the trial court likely would not have admitted the Cruz

statement even if counsel had made the proposed argument. See Jordan, 694

So. 2d at 712. Counsel did not perform deficiently when she failed to make a

meritless argument. See Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th

Cir. 2017) (“[A]n attorney will not be held to have performed deficiently for

failing to perform a futile act, one that would not have gotten his client any

relief.”). For these same reasons, Brown has not shown any resulting

prejudice. Because Brown can show neither deficient performance nor

prejudice, the Court finds that his claim is not substantial such that his

failure to exhaust it should be excused under Martinez. Accordingly, Brown is

not entitled to federal habeas relief on the claim in Ground Two.

C. Ground Three

In Ground Three, Brown alleges the trial court erred when it failed to

admit the victim’s statements to Cruz. Amended Petition at 9. According to

Brown, because the trial court admitted the victim’s statement to Holleran, it

should have admitted the victim’s statements to Cruz under the rule of

completeness. Id. at 9-10. He argues the statement to Holleran by itself

“effectively distort[ed] the meaning of the statement or exclude[ed] the

information substantially exculpatory to [Brown].” Id. at 10.

Brown raised a substantially similar claim as ground three of his Rule

3.850 Motion. Doc. 13-3 at 26-30. The postconviction court denied relief,

stating:

The Defendant asserts the Court committed a

fundamental error and abused its discretion in failing

to admit the recording of the victim’s last phone call.

This is a matter which could and should have been

raised on direct appeal and it is not cognizable in

post-conviction proceedings.

Id. at 459. The First DCA per curiam affirmed the postconviction court’s

denial of relief without a written opinion. Id. at 678.

Rule 3.850 “does not authorize relief based on grounds that could have

or should have been raised at trial and, if properly preserved, on direct

appeal of the judgment and sentence.” Fla. R. Crim. P. 3.850(c). Claims of

trial court error are not cognizable in motions for postconviction relief. See

McCrae v. State, 437 So. 2d 1388, 1390 (Fla. 1983). The Court finds the

postconviction court’s application of the procedural bar is an independent and

adequate state ground. See LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d

1237, 1260 n.25 (11th Cir. 2005) (noting the court “has already concluded

that the procedural requirements of Florida’s Rule 3.850 constitute

independent and adequate state grounds under the applicable law.”).

Therefore, the claim is procedurally barred on federal habeas review. Because

any future attempt to exhaust it would be futile, the claim is procedurally

defaulted. Brown has demonstrated neither cause and prejudice to excuse his

lack of exhaustion nor a fundamental miscarriage of justice. As such, the

claim in Ground Three is due to be denied as procedurally barred.

Nevertheless, even if the claim was not procedurally barred, it is still

without merit. As the Court determined in Ground Two, the Holleran

statement by itself did not create a misleading impression; therefore, the trial

court did not err when it declined to admit the Cruz statement under the rule

of completeness. Accordingly, Brown is not entitled to relief on the claim in

Ground Three.

D. Ground Four

As Ground Four, Brown asserts he entered an involuntary guilty plea

because he did not know that intent to cause death was an element of second-

degree murder. Amended Petition at 11. He alleges that before he entered a

guilty plea, counsel misadvised him that intent to cause death was not an

element of second-degree murder. Id.

Brown raised a substantially similar claim as ground four of his Rule

3.850 Motion. Doc. 13-3 at 30-33. The postconviction court denied relief,

stating in pertinent part:

The Defendant contends his plea was

involuntary because he was not correctly advised

about the elements of second degree murder. He

claims the jury instruction given at his trial for

second degree murder stated, “[I]t is not necessary for

the State to prove the Defendant intended to cause

death.” He states that counsel did not correct this

“misinformation” before he entered his plea,

rendering the plea unintelligent and involuntary.

He is incorrect about the nature of second

degree murder. The crime is defined in section

782.04(2), Florida Statutes (2011):

(2) The unlawful killing of a human

being, when perpetrated by an act

imminently dangerous to another and

evincing a depraved mind regardless of

human life, although without any

premeditated design to effect the death of

any particular individual, is murder in

the second degree.

The intent to cause the death of the victim is not an

element of the crime and the jury instruction was

correct. Counsel committed no error on this point.

Id. at 460. The First DCA per curiam affirmed the postconviction court’s

denial of relief without a written opinion. Id. at 678.

To the extent that the First DCA decided the claim on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Brown is not

entitled to relief on the basis of this claim.

Even assuming the appellate court’s adjudication of the claim is not

entitled to deference, Brown’s claim is without merit. Under Florida law,

“[t]he unlawful killing of a human being, when perpetrated by any act

imminently dangerous to another and evincing a depraved mind regardless of

human life, although without any premeditated design to effect the death of

any particular individual, is murder in the second degree . . . .” Fla. Stat. §

782.04(2) (2011) (emphasis added). Intent to cause death is not an element of

second-degree murder. See Fla. Std. Jury Instr. (Crim.) 7.4 “(In order to

convict of Second Degree Murder, it is not necessary for the State to prove the

defendant had an intent to cause death”). Counsel did not misadvise Brown;

therefore, his plea was not involuntary. As such, Brown is not entitled to

relief on the claim in Ground Four.

E. Ground Five

In Ground Five, Brown argues counsel was ineffective when she failed

to impeach Judy Glendenning, the victim’s mother, with a prior inconsistent

statement. Amended Petition at 13. He asserts Glendenning denied on cross-

examination that she told law enforcement that the victim began selling

marijuana when he lost his job. Id. According to Brown, he asked counsel to

impeach Glendenning with a written report from Detective Carl Rogers, but

counsel stated she could not impeach the victim’s mother. Id. Brown

maintains if counsel had impeached Glendenning, he would not have pled

guilty “but he would have insisted on waiting for the jury to reach a verdict.”

Id. at 14.

Brown raised a substantially similar claim as ground five of his Rule

3.850 Motion. Doc. 13-3 at 33-36. The postconviction court denied relief,

stating in pertinent part:

The Defendant alleges counsel was ineffective

for failing to adequately impeach a witness with prior

inconsistent statements. During the State’s case, the

victim’s mother, Judy Glendenning, testified about

her son. The Defendant claims she lied when she

testified that her son did not use or sell drugs and

asserts counsel should have impeached her with her

prior statement to a police detective that she knew

her son was selling marijuana.

Counsel did ask her about her prior statement

to the detective, but she denied telling the detective

her son sold drugs. The only way for counsel to

impeach on this point would have been to call the

detective as a witness during the defense’s case. The

written report was hearsay and could not have been

admitted into evidence without the detective’s

testimony. At the close of the State’s case, defense

counsel announced she would not be calling any

witnesses; the Defendant said he was in agreement

with this decision, and was satisfied with counsel’s

cross-examination of the State’s witnesses.

And, importantly, the evidence Glendenning

gave was not particularly damaging to the Defendant

or critical to the State’s case. The prosecutor wanted

to have her testify about her son’s disability, in order

to discredit the Defendant’s claim of self-defense. The

Court disallowed this, finding it might be relevant on

rebuttal if the Defendant did testify but that it was

premature. Glendenning did not see the shooting or

have any other evidence connecting the Defendant to

the crime, so impeaching her would have done little

to discredit the State’s case. There is no reasonable

probability that impeaching Glendenning further

would have altered the outcome of the trial, had the

Defendant elected to wait for the jury verdict rather

than enter a plea.

Id. at 460-61 (record citations omitted). The First DCA per curiam affirmed