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

> District Court, M.D. Florida · May 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10112892

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 15, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10112892

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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.
2
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.
3
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.
4
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
5
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
6
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)).
7
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
8
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 §
9
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
10
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
11
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.
12
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).
13
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
14
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
15
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.
16
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
17
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.
18
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.
19
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
20
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.
21
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
22
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
23
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.
24
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)
25
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.

26
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.
27
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.
28
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
29
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
30
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

31
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.

32
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
33
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
34
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.

35
Id. at 460-61 (record citations 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, 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. The State called Glendenning
to testify about the victim’s disability to rebut the defense’s anticipated self-
defense argument. Doc. 13-2 at 314-15. The trial court did not permit her to
testify on that subject during the State’s case-in-chief. Id. at 319-20. Instead,

Glendenning testified about the victim’s place of employment, vehicle, and
36
cell phone number. Id. at 334-36. She also identified his personal effects. Id.
343-45. Because Glendenning did not provide critical testimony about the

shooting or the events surrounding it, the Court finds counsel did not perform
deficiently when he failed to impeach her. Given the record, Brown fails to
demonstrate “no competent counsel would have taken the action that his
counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir.

2000). Therefore, Brown is not entitled to federal habeas relief on the claim in
Ground Five.
F. Ground Six
Next, Brown alleges that the state court violated his right to due

process when it denied him access to grand jury testimony from Detective
Roger Prendergast. Amended Petition at 15. He maintains Detective
Prendergast violated his right to counsel and privilege against self-
incrimination when Detective Prendergast obtained a confession from him.

Id. at 15. Brown asserts that even though the trial court suppressed the
confession, “there is a strong likelihood that Detective Prendergast used the
illegal confession to obtain a Grand Jury Indictment against [him].” Id. at 16.
Therefore, he argues the indictment is defective as “fruit of the poisonous

tree.” Id. According to Brown, he filed a motion on April 18, 2016, requesting
37
a transcript of the testimony, but the state court denied his request because
no good cause existed to grant postconviction discovery. Id. at 15-16.

Brown raised a substantially similar claim as ground six of his
amended Rule 3.850 Motion. Doc. 13-3 at 616-17. The postconviction court
dismissed the claim as untimely, stating in pertinent part:
Ground Six is a new claim regarding police
misconduct in obtaining statements from the
Defendant. The time for filing new claims expired on
December 8, 2017. Further, the Defendant admits
counsel filed a motion to suppress but the Court
denied it. He does not allege ineffective assistance of
counsel, but court error, a matter which should have
been addressed on direct appeal and is not cognizable
in post-conviction proceedings.

Id. at 684-85. The First DCA per curiam affirmed the postconviction court’s
dismissal without a written opinion. Id. at 784.
Under Rule 3.850(b), a postconviction motion cannot be filed more than
two years after a movant’s judgment and sentence become final. A court need
not consider new claims for relief contained in an amendment unless the
amendment is filed within the two-year time limitation. Fla. R. Crim. P.
3.850(e). Here, the First DCA dismissed Brown’s direct appeal on December
8, 2015. Doc. 13-3 at 1088; see Silver v. State, 964 So. 2d 180, 180 (Fla. 1st
DCA 2007) (“The appellant’s conviction did not become final until after this
38
Court relinquished jurisdiction . . . by issuing an order granting the
appellant’s motion to voluntarily dismiss the direct appeal.”). Brown did not

file his amended Rule 3.850 Motion until January 10, 2018. Doc. 13-3 at 591-
621. The postconviction court determined that Brown raised this new claim
for relief in ground six, and as such, it was untimely filed. Id. at 684-85. The
Court finds the postconviction court’s application of the procedural bar is an

independent and adequate state ground. See LeCroy, 421 F.3d at 1260.
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. Accordingly,
relief on the claim in Ground Six is due to be denied as procedurally barred.
Nevertheless, even assuming the claim was not procedurally barred, it
is still without merit. To the extent Brown argues the state court erred when

it denied his motion for grand jury testimony based on its finding that no
good cause existed to engage in postconviction discovery, the Eleventh Circuit
“has repeatedly held defects in state collateral proceedings do not provide a
basis for habeas relief.” Carroll v. Sec’y, Dep’t of Corr., 574 F.3d 1354, 1365

(11th Cir. 2009) (citations omitted). “The reasoning behind this well-
39
established principle is straightforward: a challenge to a state collateral
proceeding does not undermine the legality of the detention or imprisonment

— i.e., the conviction itself — and thus habeas relief is not an appropriate
remedy.” Id. (citations and emphasis omitted); Anderson v. Sec’y for Dep’t of
Corr., 462 F.3d 1319, 1330 (11th Cir. 2006); Quince v. Crosby, 360 F.3d 1259,
1261-62 (11th Cir. 2004); Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir.

1987) (“Neither the state court’s failure to hold a hearing on petitioner’s 3.850
motion nor its failure to attach the relevant portions of the record in any way
undermines the validity of petitioner’s conviction. Because [the] claim[] goes
to issues unrelated to the cause of petitioner’s detention, it does not state a

basis for habeas relief.”) (citations omitted). Here, Brown challenges a defect
in the state postconviction process. Therefore, he does not present a claim
cognizable in a federal habeas petition, and he is not entitled to relief.
If Brown challenges the sufficiency of the indictment, his claim still

does not have merit. A defective indictment claim is cognizable on federal
habeas review only when the charging document is so deficient that it
deprives the convicting court of jurisdiction. DeBenedictis v. Wainwright, 674
F.2d 841, 842 (11th Cir. 1982). Here, the indictment included Brown’s name

and described the times and locations of the offenses. Doc. 13-1 at 28. It
40
stated the statutory basis for each count and set forth the elements of the
charges. Id. The indictment was not so deficient that it deprived the trial

court of jurisdiction. See DeBenedictis 674 F.2d at 842. Accordingly, Brown is
not entitled to federal habeas relief on the claim in Ground Six.
G. Ground Eight
Lastly, Brown contends the prosecutor violated Giglio11 when she

knowingly presented and failed to correct false testimony from Holleran.
Amended Petition at 19. He alleges Holleran testified at trial that he was not
at the scene when the shooting occurred. Id. However, Brown argues
Holleran testified falsely because the victim made a telephone call to Cruz

during which he stated “They shot me . . . Adam Holleran and [P]ez got into it
. . . I’m going to die.” Id.
Brown raised a substantially similar claim as ground seven of his

amended Rule 3.850 Motion. Doc. 13-3 at 617-19. The postconviction court
dismissed the claim as untimely filed, stating in pertinent part:
Ground Seven is similarly a new claim. The
Defendant asserts a Giglio violation on the part of the
prosecutor. He does not allege newly discovered
evidence on this claim and gives no reason why he
could not have raised the claim in a timely manner.

11 Giglio v. United States, 405 U.S. 150 (1972).
41
Id. at 685. The First DCA per curiam affirmed the postconviction court’s
dismissal without a written opinion. Id. at 784. The Court finds the

postconviction court’s application of the state law procedural bar is an
independent and adequate state ground for denial of relief on this claim. See
LeCroy, 421 F.3d at 1260. 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. Accordingly, relief on the claim in Ground Eight is due
to be denied as procedurally barred.

Nevertheless, even assuming the claim was not procedurally barred, it
is still without merit. To establish a Giglio violation, a petitioner “must prove:
(1) the prosecutor knowingly used perjured testimony or failed to correct
what he subsequently learned was false testimony; and (2) such use was

material, i.e., that there is any reasonable likelihood that the false testimony
could have affected the judgment.” Guzman v. Sec’y, Dep’t of Corr., 663 F.3d
1336, 1348 (11th Cir. 2011) (quotation marks and ellipsis omitted). Mere
inconsistency in testimony is insufficient to establish a Giglio claim. United

States v. Stein, 846 F.3d 1135, 1149 (11th Cir. 2017). Here, Brown fails to
42
demonstrate that the prosecutor knowingly presented false testimony. The
fact that two prosecution witnesses, Holleran and Cruz, presented two

conflicting versions of events without more does not establish a Giglio
violation. See United States v. Gibbs, 662 F.2d 728, 730 (11th Cir. 1981)
(“Though knowing prosecutorial use of false evidence or perjured testimony
violates due process . . . it is not enough that the testimony is challenged by

another witness or is inconsistent with prior statements.”). Brown has not
provided any additional facts or evidence to support his claim; therefore, he
has failed to establish a Giglio violation. Accordingly, he is not entitled to
relief on the claim in Ground Eight.

VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)

If Brown seeks issuance of a certificate of appealability, the
undersigned opines that a certificate of appealability is not warranted. 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, Brown “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
43
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)).
Where a district court has rejected a petitioner’s constitutional claims
on the merits, the petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or

wrong. See Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show that “jurists
of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.
Upon consideration of the record as a whole, the Court will deny a certificate
of appealability.
Therefore, it is now

ORDERED AND ADJUDGED:
1. The Amended Petition (Doc. 8) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment denying the

Amended Petition and dismissing this case with prejudice.
44
3. If Brown appeals the denial of the Amended Petition, 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, The Clerk of the Court is directed to close this case and terminate

any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 12th day of
May, 2023.

United States District Judge

Jax-9 4/19
William Henry Brown, #148952
Counsel of record

45

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112892. Public record. Not legal advice.