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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAMES MITCHELL,

Petitioner,

v. Case No. 8:20-cv-1214-CEH-MRM

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

James Mitchell, a Florida prisoner, timely filed a pro se petition for writ of

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

the petition. (Doc. 7.) Mitchell filed a reply. (Doc. 10.) Upon consideration, the

petition will be DENIED.

I. Procedural History

A state-court jury convicted Mitchell of robbery with a weapon and battery on

a victim over sixty-five. (Doc. 7-2, Ex. 4.) After finding that he qualified as a habitual

felony offender and a prison releasee reoffender, the state trial court sentenced Mitchell

to concurrent terms of life imprisonment on the robbery count and five years’

imprisonment on the battery count. (Id., Ex. 5.) The state appellate court per curiam

affirmed the convictions and sentences. (Id., Ex. 7.) Mitchell then sought

postconviction relief under Florida Rule of Criminal Procedure 3.850. (Id., Exs. 9, 10.)

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

affirmed the denial of relief. (Id., Exs. 11, 13.) This federal habeas petition followed.

(Doc. 1.)

II. Facts; Trial Testimony1

On March 15, 2016, Charles Bean was working as a security guard at the Tampa

Wholesale Produce Market. Bean was seventy years old at the time, and he worked

out of a “guard shack” in the market. (Doc. 7-3, Ex. 15, pp. 173-74.) For several years,

Bean had sporadically bought items from Mitchell, who would visit Bean while he was

working at the market. Bean also occasionally gave Mitchell gas money when he was

“in a bind.” (Id., p. 177.)

Bean testified that, on the morning of March 15, Mitchell visited him in the

guard shack and asked if he was “interested in” buying an air compressor. (Id., p. 178.)

Bean said he was, and Mitchell left to retrieve the item. Approximately forty-five

minutes later, Mitchell returned to the guard shack with the compressor. Bean told

Mitchell to put the item in the back of his truck; Mitchell complied. Bean then removed

a “white envelope” from an inside pocket of his jacket, which was hanging on a nail

by the doorway. (Id., pp. 179, 181.) Bean took $30 from the envelope and gave it to

Mitchell. Bean testified that he also asked whether Mitchell could find a “sander,” but

the two did not agree on a price at the time. (Id., pp. 179-80.) Mitchell left, and Bean

did not expect him to return that day.

1 This summary is based on the trial transcript.

Later that morning, Bean saw Mitchell walk toward the guard shack, then turn

around and leave. Bean testified that, shortly thereafter, Mitchell entered the guard

shack and immediately began hitting him over the head with a “piece of wood.” (Id.,

pp. 181-82.) The stick was approximately one to two feet long and “four to five inches

across.” (Id., p. 184.) Bean was sitting down during the attack, and he did not see

Mitchell “prior to him coming through the doorway.” (Id., p. 181.)

Once the attack ended and Bean was able to get up, he ran to a gas station for

help. Mitchell left the shack carrying Bean’s jacket, which contained an envelope with

$240 in cash. Bean was ultimately taken to a hospital where he received fourteen

“staples in three different places.” (Id., p. 198.) The top of Bean’s head was

“permanently scarr[ed],” and his arm was “swollen three times what it normally

[was].” (Id.)

Robert Boehm, a customer at the market, witnessed the attack. At the time, he

was parked in his truck approximately fifteen feet from the guard shack. Boehm

testified that he looked through the shack’s glass door and saw Mitchell “hitting [Bean]

in the head” with a “big stick.” (Id., pp. 263-65.) After the attack, Boehm observed

Mitchell “going through some pockets” of a “dark colored sweater,” which Boehm

subsequently identified as Bean’s jacket. (Id., pp. 266-67.) Boehm followed Mitchell in

his truck as the latter fled on foot. He saw Mitchell throw the jacket on the ground and

jump a fence. At this point, law enforcement apprehended Mitchell, recovering $240

in cash from his “front left pocket.” (Id., p. 254.)

Mitchell testified at trial and offered a different account of the incident. He

claimed that, on the morning of March 15, he sold Bean an air compressor for $20.

According to Mitchell, Bean paid him by removing the cash from his pants pocket. As

Mitchell was getting ready to leave, Bean asked whether Mitchell could “get [him] a

four[-]inch belt sander.” (Id., p. 292.) Mitchell said he would need “another $30” to

obtain the item. (Id.) Bean agreed and gave Mitchell the cash from his pants pocket.

Mitchell then left the shack.

Mitchell testified that, later that morning, he returned to the market to tell Bean

that he “was not able to keep [his] end of the bargain.” (Id., p. 295.) According to

Mitchell, he had taken Bean’s money and “got[ten] high with it.” (Id., p. 296.) As

Mitchell approached the guard shack, he noticed that “another guy” was there with

Bean. (Id., p. 297.) Mitchell turned around, walked back down the street, and waited

for the person to leave.

When Mitchell returned approximately five minutes later, Bean was alone in

the shack. Mitchell testified that he entered the shack and set his bag down. Bean

picked the bag up and said, “[T]his feels a little light to have a sander in there.” (Id., p.

298.) Mitchell testified that, when he told Bean he had used the money to get high,

Bean got “really upset” and began attacking him “out of nowhere.” (Id., p. 299.)

According to Mitchell, Bean jumped up and tried to wrap his arms around Mitchell’s

neck. Mitchell claimed he “look[ed] around,” saw “an old stick on the ground,” and

picked it up. (Id., p. 300.) Mitchell then hit Bean on the head with the stick to “protect

[himself].” (Id.) When Bean left the shack “hollering [for] help,” Mitchell took the

jacket to “cover [his] appearance to look different.” (Id., p. 304.) As he was walking

through the parking lot, Mitchell claimed he “felt something in the [jacket] pockets.”

(Id., p. 305.) He pulled out an envelope containing $240 in cash, took the money, and

decided he could not “keep [the] jacket anymore.” (Id.) Mitchell therefore “threw the

jacket on the ground” and “jumped across the fence to try to get away.” (Id.)

On cross examination, Mitchell admitted that he did not receive any injuries

“from being inside of the guard shack with” Bean. (Id., p. 315.) Asked why he ran from

the scene if he was “defending [himself],” Mitchell claimed that he “panicked.” (Id.,

p. 313.) Mitchell also acknowledged that he had been convicted of “[e]leven felonies

and seven crimes of dishonesty.” (Id., p. 309.)

III. Standards of Review

A. AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this

proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

can be granted only if a petitioner is in custody “in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides

that federal habeas relief cannot be granted on a claim adjudicated on the merits in

state court unless the state court’s adjudication:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

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

court proceeding.

A decision is “contrary to” clearly established federal law “if the state court

arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

of law or if the state court decides a case differently than [the Supreme] Court has on

a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).

A decision involves an “unreasonable application” of clearly established federal law

“if the state court identifies the correct governing legal principle from [the Supreme]

Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s

case.” Id.

AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell v. Cone, 535

U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s

application of clearly established federal law is objectively unreasonable, and . . . an

unreasonable application is different from an incorrect one.” Id. at 694; see also

Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas

corpus from a federal court, a state prisoner must show that the state court’s ruling on

the claim being presented in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.”).

The state appellate court affirmed the denial of postconviction relief without

discussion. This decision warrants deference under § 2254(d)(1) because “the

summary nature of a state court’s decision does not lessen the deference that it is due.”

Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). When a state appellate court

issues a silent affirmance, “the federal court should ‘look through’ the unexplained

decision to the last related state-court decision that does provide a relevant rationale”

and “presume that the unexplained decision adopted the same reasoning.” Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018).

B. Exhaustion of State Remedies; Procedural Default

A federal habeas petitioner must exhaust his claims in state court before

presenting them in his federal habeas petition. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v.

Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an

opportunity to act on his claims before he presents those claims to a federal court in a

habeas petition.”). The exhaustion requirement is satisfied if the petitioner fairly

presents his claim in each appropriate state court and alerts that court to the federal

nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971).

The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default

which will bar federal habeas relief, unless either the cause and prejudice or the

fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d

1135, 1138 (11th Cir. 2001). A fundamental miscarriage of justice occurs in an

extraordinary case where a constitutional violation has probably resulted in the

conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327

(1995); Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). To establish cause

for a procedural default, a petitioner “must demonstrate that some objective factor

external to the defense impeded the effort to raise the claim properly in state court.”

Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). A petitioner demonstrates

prejudice by showing that “there is at least a reasonable probability that the result of

the proceeding would have been different” absent the constitutional violation.

Henderson, 353 F.3d at 892.

C. Ineffective Assistance of Counsel

Mitchell alleges ineffective assistance of trial counsel. Ineffective-assistance-of-

counsel claims are analyzed under the test established in Strickland v. Washington, 466

U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and

resulting prejudice. Id. at 687. Deficient performance is established if, “in light of all

the circumstances, the identified acts or omissions [of counsel] were outside the wide

range of professionally competent assistance.” Id. at 690. However, “counsel is

strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id.

Mitchell must show that counsel’s alleged error prejudiced the defense, because

“[a]n error by counsel, even if professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error had no effect on the judgment.”

Id. at 691. To demonstrate prejudice, Mitchell must show “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694.

Obtaining relief on a claim of ineffective assistance of counsel is difficult on

federal habeas review because “[t]he standards created by Strickland and § 2254(d) are

both highly deferential, and when the two apply in tandem, review is doubly so.”

Richter, 562 U.S. at 105 (internal quotation marks and citations omitted); see also Burt

v. Titlow, 571 U.S. 12, 15 (2013) (stating that this doubly deferential standard of review

“gives both the state court and the defense attorney the benefit of the doubt”). “The

question [on federal habeas review of an ineffective-assistance claim] ‘is not whether a

federal court believes the state court’s determination’ under the Strickland standard

‘was incorrect but whether that determination was unreasonable—a substantially

higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v.

Landrigan, 550 U.S. 465, 473 (2007)).

IV. Discussion

A. Ground One

Mitchell contends that trial counsel provided ineffective assistance because she

was unable to play certain surveillance footage for the jury during closing argument.

According to Mitchell, the footage showed that he was not “armed with a weapon”

when he entered the guard shack. (Doc. 10, p. 2.) Mitchell argues that, had the jury

seen this footage during closing argument, it “would have had all [the] facts and

evidence to fairly deliberate upon.” (Id., p. 3.)

The state court denied this claim as follows:

In claim one, Defendant alleges ineffective assistance of counsel for

failing to show a surveillance video to the jury during closing arguments.

Defendant alleges the video showed him entering the guard shack (where

the victim was located) without any kind of weapon—namely, a large

stick. Defendant alleges counsel did not show the surveillance video

because “she could not get the video to work properly at that moment.”

He alleges if it had been pointed out to the jury that he was unarmed, it

would have removed “the theory of ‘intent to commit to robbery’ or any

other premeditated act” and would have removed “the allegation of

battery on a person 65 years of age or older.” Defendant contends that

but for counsel’s deficient performance, there is a reasonable probability

the outcome of the trial would have been different.

The Court finds claim one to be refuted by the record. The record reflects

that although counsel did not play this portion of the video, counsel

expressly argued that the video clearly showed Defendant did not have

anything in his hands when he entered the guard shack. Counsel

instructed the jury it would have the video [and] to “watch it, and watch

it, and watch it,” but counsel was not playing the video for the jurors at

that time. The record further reflects that counsel argued Defendant had

no intention of engaging in “any altercation” with the victim when he

entered the guard shack. Thus, in light of the fact that counsel made the

argument that Defendant is suggesting and because the jury was

instructed it would have the video to watch, the Court finds the record

refutes Defendant’s claims of deficient performance and prejudice.

Accordingly, relief is not warranted on claim one.

(Doc. 7-2, Ex. 11, pp. 2-3 (record citations omitted).)

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

prosecution introduced the surveillance footage into evidence over Mitchell’s

objection. (Doc. 7-3, Ex. 15, pp. 187-89.) The prosecution then reviewed the footage

with Bean on direct examination. (Id., pp. 189-95.) During closing argument,

Mitchell’s counsel played a portion of the footage that showed Mitchell walking into

the guard shack. Counsel argued that, contrary to Bean’s description of the incident,

Mitchell was not “swinging anything” in the video. (Id., p. 353.) Counsel then pointed

out that another part of the footage, taken from a different angle, also showed Mitchell

on his “walk up” to the shack. (Id.) Counsel claimed that in this video, Mitchell had

“nothing in his hands.” (Id.) Although counsel was ultimately unable to play this bit

of footage, she described it to the jury and urged them to watch it: “[W]hat you will

see is Mr. Mitchell when he walks up. And you can watch it, and watch it, and watch

it. He does not have any stick in his hand when he approaches. That is because when

Mr. Mitchell goes to that guard shack he has no intentions of having any altercation

with Mr. Bean.” (Id., pp. 353-54.)

Following closing arguments, the trial court instructed the jury that all exhibits

entered into evidence would “be sent into [] the jury room when you begin to

deliberate.” (Id., p. 386.) The court also noted that the jury could “examine whatever

exhibits you think will be helpful in your deliberations.” (Id.) Notably, during

sentencing, Mitchell’s counsel pointed out that, according to the courtroom deputy,

the jury had “asked for both videos” when they “went back to deliberate.” (Id., Ex. 17,

pp. 7-8.)

Faced with this evidence, the state court reasonably concluded that counsel’s

failure to play a portion of the surveillance footage during closing argument did not

render her performance constitutionally deficient. See Strickland, 466 U.S. at 690

(noting that “counsel is strongly presumed to have rendered adequate assistance”).

Furthermore, the state court reasonably found that Mitchell was not prejudiced by this

technical mishap. As the state court correctly noted, the footage was available to the

jury during its deliberations, and Mitchell’s counsel offered her exculpatory

interpretation of the video during closing argument. Mitchell thus failed to establish a

“reasonable probability that, but for counsel’s [failure to play the footage during

closing argument], the outcome at trial would have been different.” Reed v. Sec’y, Fla.

Dep’t of Corr., 767 F.3d 1252, 1261 (11th Cir. 2014); see also Strickland, 466 U.S. at 693

(“It is not enough for the [petitioner] to show that the errors had some conceivable

effect on the outcome of the proceeding.”).

In short, Mitchell has not shown that the state court’s rejection of his ineffective-

assistance claim involved an unreasonable application of Strickland or was based on an

unreasonable factual determination. Thus, he is not entitled to relief on Ground One.

B. Ground Two

Mitchell contends that trial counsel rendered ineffective assistance because she

failed to impeach Bean with his “prior inconsistent statements” to law enforcement.

(Doc. 1, p. 7.) According to Mitchell, Bean told law enforcement that “he did not see

[Mitchell] bring a stick into [the] guard shack.” (Doc. 10, p. 5.) Mitchell argues that

Bean told a “complete[ly] different tale[]” at trial, and that counsel was ineffective for

failing to impeach Bean on this basis. (Doc. 1, p. 7.)

The state court denied this claim as follows:

In claim two, Defendant alleges ineffective assistance of counsel for

failing to impeach the victim, Charles Bean. Defendant alleges Mr. Bean

told law enforcement officers during the initial investigation that he did

not see Defendant enter the guard shack carrying a large stick. Defendant

alleges Mr. Bean testified inconsistently at trial, and identified the

inconsistencies as follows: (1) on page 192 of the trial transcript Mr. Bean

testified Defendant brought the stick with him, (2) on page 193 of the trial

transcript Defendant alleges Mr. Bean testified Defendant only had a

blue bag with him, (3) on page 203 of the trial transcript Defendant

alleges Mr. Bean admitted a struggle took place, (4) on page 222 of the

trial transcript Defendant alleges Mr. Bean testified Defendant came in

swinging, (5) on page 222 of the trial transcript Defendant alleges Mr.

Bean testified both that Mr. Bean did not see Defendant enter with a stick

and that the stick came in when Defendant came in, (6) on page 223 of

the trial transcript Defendant alleges Mr. Bean testified Mr. Bean was

sitting down the whole time, and (7) on page 225 of the trial transcript

Defendant alleges Mr. Bean testified he did not see Defendant move Mr.

Bean’s coat. Defendant contends Mr. Bean’s trial testimony was

inconsistent with his statements to law enforcement officers and but for

counsel’s deficient performance the outcome of the proceedings would

have been different.

The Court finds claim two to be without merit. The record reflects that—

consistent with what Defendant alleges Mr. Bean told officers during the

initial investigation—Mr. Bean never testified he saw Defendant enter

the guard house with a stick. Upon review of the entirety of Mr. Bean’s

testimony on direct examination and cross-examination, the Court finds

Mr. Bean’s testimony to be substantively internally consistent and

consistent with his statement to law enforcement officers. In particular,

the Court finds Mr. Bean essentially testified that he did not see

Defendant holding the stick because Mr. Bean was immediately

defending himself against being hit with a stick upon Defendant’s entry

into the guard house. The Court does not find Mr. Bean’s testimony that

Defendant had to have brought the stick with him because there was not

a stick in the guard house to be inconsistent with Mr. Bean’s prior

statement that he did not see Defendant carry the stick. Likewise, the

Court finds nothing inconsistent with either the State’s or Mr. Bean’s

characterization of the event as a struggle even though Mr. Bean claimed

he was seated during the event, especially in light of Mr. Bean’s

testimony that he was defending himself. With regard to whether or not

Mr. Bean saw Defendant move Mr. Bean’s jacket, Defendant took the

stand and testified he took Mr. Bean’s jacket as he was leaving in order

to disguise his appearance. Mr. Bean testified he did not know if

Defendant took the coat because he “was more concerned with being hit

than [he] was looking at [his] jacket.” Thus, in light of Defendant’s

testimony that he took the coat and Mr. Bean’s inconclusive response as

[to] whether Defendant took the coat, the Court finds the outcome of trial

would not have been different had counsel questioned Mr. Bean about

whether he told an officer he saw Defendant grab his coat and leave.

Consequently, for all of the above reasons, the Court finds Defendant has

not established deficient performance or prejudice. Accordingly, relief is

not warranted on claim two.

(Doc. 7-2, Ex. 11, pp. 3-5 (record citations omitted).)

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

According to Mitchell, Bean told law enforcement that he did not see Mitchell enter

the guard shack with a stick. As the state court correctly noted, Bean’s trial testimony

was consistent with this statement. Contrary to Mitchell’s assertion, Bean did not

testify at trial that he saw Mitchell enter the shack with a stick. Instead, Bean claimed

that he “first saw” Mitchell “when [Mitchell] was hitting him.” (Doc. 7-3, Ex. 15, p.

181.) Bean elaborated that “all [he] saw was a stick coming down on [his] head,” and

that he “had no time to see nothing but defense.” (Id., pp. 221-22.) Bean also testified

that, although he “did not see a stick in [Mitchell’s] hand” when Mitchell entered, the

stick “came in” when Mitchell “came in.” (Id., p. 222.) Thus, as the state court noted,

Bean essentially testified that “he did not see [Mitchell] holding the stick because [he]

was immediately defending himself against being hit with a stick upon [Mitchell]’s

entry into the guard house.” (Doc. 7-2, Ex. 11, p. 4.) Because this testimony was

consistent with Bean’s prior statement to law enforcement, counsel was not ineffective

for failing to impeach him with it. See, e.g., Rivera v. McNeil, No. 07-22633-CIV, 2009

WL 4277235, at *11 (S.D. Fla. Nov. 30, 2009) (“Counsel [was] not ineffective for

failing to impeach [a prosecution witness] with a prior inconsistent statement because

[his] trial testimony and the 911 tape are consistent.”).

Likewise, the state court correctly concluded that habeas relief was not

warranted based on the other alleged inconsistencies in Bean’s testimony. For

example, there is no inconsistency between Bean’s description of the encounter as a

“struggle” and his testimony that he was sitting down during the incident. (Doc. 7-3,

Ex. 15, pp. 203, 223.) Additionally, in his postconviction motion, Mitchell claimed

Bean told law enforcement that “Mitchell grabbed his jacket that was hanging on a

nail and then fled on foot.” (Doc. 7-2, Ex. 10, p. 4.) According to Mitchell, this

statement was inconsistent with Bean’s trial testimony that he did not see Mitchell take

the jacket. Even assuming that the testimony was inconsistent, Mitchell cannot show

that “counsel was deficient for failing to impeach [Bean] on minor inconsistencies that

did not completely contradict [his] trial testimony and could easily be attributed to the

lapse of time or differences in the manner []he was questioned and recounted the

events.” Wilson v. Sec’y, Dep’t of Corr., No. 6:10-cv-422-CEH-KRS, 2013 WL 1499549,

at *7 (M.D. Fla. Apr. 12, 2013).2

Accordingly, Mitchell has not shown that the state court’s rejection of his

ineffective-assistance claim involved an unreasonable application of Strickland or was

based on an unreasonable factual determination. Thus, he is not entitled to relief on

Ground Two.

2 During the prosecution’s case, Bean was shown surveillance footage that depicted Mitchell walking

up to the guard shack. Commenting on one part of the footage, Bean testified that “[t]his is when

[Mitchell] walked up with nothing but his own bag I believe.” (Doc. 7-3, Ex. 15, p. 193.) Contrary to

Mitchell’s assertion, this testimony is consistent with Bean’s statement that Mitchell brought the stick

to the shack. Context makes clear that, when he noted that Mitchell was approaching with “nothing

but his own bag,” Bean was simply describing what he saw on the surveillance footage. (Id.)

C. Ground Three

Mitchell contends that trial counsel was ineffective for failing to impeach state

witness Robert Boehm with prior inconsistent statements. In his state postconviction

motion, Mitchell argued that Boehm did not tell law enforcement that he had seen

Mitchell hit Bean or “go through any kind of jacket pockets.” (Doc. 7-2, Ex. 10, p. 4.)

According to Mitchell, however, Boehm testified at trial that he saw Mitchell hit Bean

in the head and “go through the jacket pockets.” (Id.) Mitchell claimed that, had

counsel impeached Boehm with his prior inconsistent statements, there was a

reasonable probability that the outcome at trial would have been different.

The state court denied this claim as follows:

In claim three, Defendant alleges ineffective assistance of counsel for

failing to impeach witness Robert Boehm. Defendant alleges that Mr.

Boehm testified at trial he witnessed Defendant hit the victim twice and

witnessed Defendant go through the pockets of a jacket, but alleges Mr.

Boehm’s statement to law enforcement officers makes no mention of him

seeing Defendant hit the victim or seeing Defendant going through the

pockets of a jacket. Defendant contends that but for counsel’s failure to

impeach Mr. Boehm with his prior inconsistent statements, the outcome

of the proceedings would have been different as the Court would have

granted a judgment of acquittal. Inexplicably, however, Defendant cites

the portions of the trial transcript where counsel did cross-examin[e] Mr.

Boehm about the inconsistencies between his statement to law

enforcement and his trial testimony.

The Court finds claim three to be without merit. As acknowledged by

Defendant, the record reflects counsel did impeach Mr. Boehm about the

fact that his statement to law enforcement made no mention of seeing

Defendant hit the victim or rifle through the pockets of a jacket. As such,

the record refutes Defendant’s claim of deficient conduct. Accordingly,

relief is not warranted on claim three.

(Doc. 7-2, Ex. 11, p. 5 (record citations omitted).)

The state court reasonably rejected Mitchell’s ineffective-assistance claim. As

the state court correctly recounted, trial counsel impeached Boehm with the prior

inconsistent statements Mitchell identifies. Specifically, counsel asked Boehm: “And

in your written statement you don’t indicate at all ever seeing the suspect hit Mr. Bean,

isn’t that correct?” (Doc. 7-3, Ex. 15, p. 274.) Boehm responded that it was “not in the

statement, no.” (Id.) Counsel then asked Boehm: “Now, also you don’t indicate at all

in your written sworn statement that you saw the suspect go through any kind of

pockets, any kind of jacket pockets, isn’t that correct?” (Id., p. 275.) Boehm answered,

“Yes.” (Id.)

Because the record establishes that counsel impeached Boehm with his prior

inconsistent statements, the state court correctly applied Strickland in rejecting

Mitchell’s ineffective-assistance claim. Thus, Mitchell is not entitled to relief on

Ground Three.

D. Ground Four

Mitchell argues that trial counsel rendered ineffective assistance because she

failed “to object to the finding of guilt in this case being based on improper stacking

of” inferences. (Doc. 1, p. 10.) According to Mitchell, counsel should have objected

because the prosecution “pyramided untrue facts and evidence to the court.”3 (Id.)

3 Under Florida law, “[a]n impermissible pyramiding of inferences occurs where at least two inferences

in regard to the existence of a criminal act must be drawn from the evidence and then stacked to prove

the crime charged; in that scenario, it is said that the evidence lacks the conclusive nature to support

a conviction.” Graham v. State, 748 So. 2d 1071, 1072 (Fla. 4th DCA 1999).

Respondent contends that Mitchell failed to exhaust this claim because he did

not raise it when he appealed the denial of his Rule 3.850 postconviction motion. The

Court disagrees. Mitchell raised Ground Four in his postconviction motion. (Doc. 7-

2, Ex. 10, pp. 5-6.) The state court denied relief without holding an evidentiary hearing

on any of the claims, and Mitchell appealed. (Id., Exs. 11, 12.) Respondent is correct

that, in his appellate brief, Mitchell did not argue that trial counsel was ineffective for

failing to object to the prosecution’s alleged stacking of inferences. (Doc. 7-3, Ex. 18.)

It does not follow, however, that Mitchell failed to exhaust this claim. “[A]lthough

[Mitchell] filed a pro se brief on appeal, he was not required to file an appellate brief

because the postconviction court summarily denied his Rule 3.850 motion without an

evidentiary hearing.” Smith v. Sec’y, Fla. Dep’t of Corr., No. 3:20-cv-170-MMH-MCR,

2022 WL 16923699, at *6 (M.D. Fla. Nov. 14, 2022) (citing Fla. R. App. P.

9.141(b)(2)(C)(i)). Furthermore, Mitchell’s decision to file an appellate brief and “to

address only some of the issues [did] not waive the remaining issues raised in his Rule

3.850 motion.” Cortes v. Gladish, 216 F. App’x 897, 899 (11th Cir. 2007). Accordingly,

Mitchell properly exhausted Ground Four despite his failure to raise the issue on

appeal.

Nevertheless, Mitchell is not entitled to relief. The state court denied Mitchell’s

ineffective-assistance claim as follows:

In claim four, Defendant alleges ineffective assistance of counsel for

“failing to object to the finding of guilt in this case being based on

improper stacking of influence (sic).” Defendant cites to numerous

statements made by the State during its closing argument and argues that

the State failed to prove he entered the guard house armed with a tree

branch. Citing, in part, to Rocker v. State, 122 So. 3d 898 (Fla. 2d DCA

2013), Defendant alleges counsel should have argued “insufficiency of

evidence based on improper pyramiding of evidence.” Defendant

contends that but for counsel’s failure to object on an insufficient

evidence basis, there is a reasonable probability the outcome would have

been different.

The Court finds claim four to be without merit. Defendant testified that

he defended himself after Mr. Bean attacked him. The State presented

contrary evidence that Defendant was the attacker—namely, the victim’s

testimony that Defendant entered the guard house swinging. Thus, the

Court finds that unlike the situation presented in Rocker, 122 So. 3d 898,

there was no “impermissible stacking of inferences.” See id. at 905

(“Based on the foregoing review of the evidence, which was purely

circumstantial, we find that the State did not present facts inconsistent

with Rocker’s reasonable hypothesis of innocence. The state failed to

present any evidence indicating Rocker’s intent. Therefore, to reach the

conclusion that the evidence was sufficient to support Rocker’s

conviction as a principal would require an impermissible stacking of

inferences.”). Thus, the Court finds the record refutes Defendant’s

assertion that counsel acted deficiently for failing to object to insufficient

evidence or impermissible stacking. Accordingly, relief is not warranted

on claim four.

(Doc. 7-2, Ex. 10, p. 6 (record citations omitted).)

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

“[A]lthough the issue of ineffective assistance . . . is one of constitutional dimension,”

a court “must defer to the state’s construction of its own law when the validity of the

[ineffective-assistance] claim . . . turns on state law.” Pinkney v. Sec’y, DOC, 876 F.3d

1290, 1295 (11th Cir. 2017). Here, the state court found that trial counsel was not

ineffective because, under Florida law, the prosecution did not impermissibly stack

inferences in presenting its case. (Doc. 7-2, Ex. 10, p. 6.) “The state court therefore has

answered the question of what would have happened had counsel objected to [the

allegedly improper stacking of inferences]—the objection would have been overruled.”

Block v. Sec’y, Dep’t of Corr., No. 8:15-cv-2442-CEH-JSS, 2019 WL 700113, at *8 (M.D.

Fla. Feb. 20, 2019); see also Herring v. Sec’y. Dep’t of Corr., 397 F.3d 1338, 1354-55 (11th

Cir. 2005) (“The Florida Supreme Court already has told us how the issues would have

been resolved under state law had [counsel] done what [the appellant] argues he should

have done. . . . It is a fundamental principle that state courts are the final arbiters of

state law, and federal courts should not second-guess them on such matters.”); Files v.

Tucker, No. 3:09-cv-490-RV-EMT, 2011 WL 6983135, at *29 (N.D. Fla. Dec. 9, 2011)

(“In light of the state court’s determination that defense counsel had no basis for

arguing a violation of state law, a determination to which this court must defer,

Petitioner failed to show deficient performance based upon counsel’s failure to argue

that an impermissible stacking of inferences occurred.”), adopted by 2012 WL 83369

(N.D. Fla. Jan. 11, 2012).

Accordingly, Mitchell has not shown that the state court’s rejection of his

ineffective-assistance claim involved an unreasonable application of Strickland or was

based on an unreasonable factual determination. For that reason, Mitchell is not

entitled to relief on Ground Four.

E. Ground Five

Finally, Mitchell seeks habeas relief based on the “cumulative effect” of the

errors allegedly committed by trial counsel. (Doc. 1, p. 11.) Mitchell raised this claim

in his postconviction motion, and the state court denied relief on the grounds that

cumulative error does not exist where, as here, there are no “individual instance[s] of

error.” (Doc. 7-2, Ex. 10, p. 6; Doc. 7-2, Ex. 11, p. 6.) Although Mitchell appealed the

denial of his postconviction motion, he did not argue cumulative error in his appellate

brief. (Doc. 7-3, Ex. 18.) Respondent argues that Mitchell’s failure to brief the issue on

appeal renders Ground Five unexhausted. For the reasons explained above in

connection with Ground Four, the Court concludes that Mitchell properly exhausted

Ground Five despite his failure to raise the issue in his appellate brief.

Nevertheless, Mitchell is not entitled to relief. “Under the cumulative-error

doctrine, a sufficient agglomeration of otherwise harmless or nonreversible errors can

warrant reversal if their aggregate effect is to deprive the defendant of a fair trial.”

Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1284 (11th Cir. 2014). A

cumulative-error claim “must fail,” however, where none of the “individual claims of

error” has “any merit.” Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir.

2012). Here, there are no individual errors to accumulate, so Mitchell’s cumulative-

error claim necessarily fails. See Otero v. Sec’y, Dep’t of Corr., No. 8:19-cv-39-SDM-AEP,

2022 WL 4095069, at *8 (M.D. Fla. Sept. 7, 2022) (“Because ground one is

procedurally barred from federal review and ground two lacks merit, [petitioner]

proves no error to accumulate to show cumulative prejudicial effect.”). Thus, because

the state court reasonably rejected Mitchell’s cumulative-error claim, he is not entitled

to relief on Ground Five.

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

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

Certificate of Appealability

and Leave to Appeal In Forma Pauperis Denied

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

appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement

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

certificate of appealability must first issue. Jd. “A certificate of appealability may issue

... only ifthe applicant has made a substantial showing of the denial of a constitutional

right.” Jd. at § 2253(c)(2). To obtain a certificate of appealability, Mitchell must show

that reasonable jurists would find debatable both (1) the merits of the underlying claims

and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Mitchell has not made the requisite showing.

Finally, because Mitchell is not entitled to a certificate of appealability, he is not

entitled to appeal in forma pauperis.

DONE and ORDERED in Tampa, Florida, on May 23, 2023.

Chakene Pdards Mo TDA pl ell

Charlene Edwards Honeywell

United States District Judge

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