Stewart v. Inch (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LEVERT STEWART,

Petitioner,

v. Case No. 3:20-cv-343-TJC-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Levert Stewart, an inmate of the Florida penal system,

initiated this action in the Northern District of Florida by filing a pro se Petition

Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody.

Doc. 1. The Honorable Hope Thai Cannon, United States Magistrate Judge,

transferred this action to this Court. See Doc. 16. Petitioner is proceeding on a

Second Amended Petition, Doc. 15 at 1-22, with an attached memorandum, id.

at 23-35. He challenges a state court (Duval County, Florida) judgment of

conviction for attempted second degree murder and possession of a firearm by

a convicted felon. Petitioner is serving a life term of incarceration as a Habitual

Felony Offender. Respondents filed a Response. See Doc. 23 (Resp.).1 Petitioner

filed a reply, see Doc. 34, and a supplemental reply, see Doc. 35. This case is

ripe for review.2

II. Governing Legal Principles

A. Standard Under AEDPA

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

governs a state prisoner’s federal habeas corpus petition. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘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)).

1 Attached to the Response are several exhibits. The Court cites the exhibits as

“Resp. Ex.”

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

the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,

1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060

(11th Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court

must consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

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

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

decision, if any, that adjudicated the petitioner’s claims on the merits. See

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Ineffective Assistance of Trial and Appellate Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington,

466 U.S. 668, 687 (1984)). To establish ineffective assistance, a person must

show: (1) counsel’s performance was outside the wide range of reasonable,

professional assistance; and (2) counsel’s deficient performance prejudiced the

challenger in that there is a reasonable probability that the outcome of the

proceeding would have been different absent counsel’s deficient performance.

Strickland, 466 U.S. at 687.

This two-part Strickland standard also governs a claim of ineffective

assistance of appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287

(11th Cir. 2016). When considering deficient performance by appellate counsel,

a court must presume counsel’s performance was

“within the wide range of reasonable professional

assistance.” Id. at 689, 104 S. Ct. 2052. Appellate

counsel has no duty to raise every non-frivolous issue

and may reasonably weed out weaker (albeit

meritorious) arguments. See Philmore v. McNeil, 575

F.3d 1251, 1264 (11th Cir. 2009). “Generally, only

when ignored issues are clearly stronger than those

presented, will the presumption of effective assistance

of counsel be overcome.” Smith v. Robbins, 528 U.S.

259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644,

646 (7th Cir.1986)); see also Burger v. Kemp, 483 U.S.

776, 784 (1987) (finding no ineffective assistance of

counsel when the failure to raise a particular issue had

“a sound strategic basis”).

Id.; see also Owen v. Sec’y, Dep’t of Corr., 568 F.3d 894, 915 (11th Cir. 2009)

(“failing to raise or adequately pursue [meritless issues on appeal] cannot

constitute ineffective assistance of counsel”).

To satisfy the prejudice prong of an ineffective assistance of appellate

counsel claim, a petitioner must show a reasonable probability that “but for the

deficient performance, the outcome of the appeal would have been different.”

Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore

v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the

neglected claim would have a reasonable probability of success on appeal”).

Also,

[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. As such, “[a]ppellate counsel might fail to identify a

mediocre or obscure basis for reversal without being ineffective under

Strickland.” Overstreet, 811 F.3d at 1287 (citation omitted).

For both claims of ineffective assistance of trial counsel and appellate

counsel, there is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). 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.” 466 U.S. at 697.

Further, “[t]he question is not whether a federal court believes the state

court’s determination under the Strickland standard was incorrect but whether

that determination was unreasonable - a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If

there is “any reasonable argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not disturb a state-court

decision denying the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s

representation was ‘within the wide range of reasonable professional

assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th

Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is

combined with § 2254(d), the result is double deference to the state court ruling

on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans

v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc)

(Jordan, J., concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004).

III. Analysis

A. Ground One

Petitioner argues that his appellate counsel was ineffective for failing to

raise on direct appeal a claim that the trial court erred in failing to conduct a

Faretta3 inquiry after Petitioner requested to represent himself.4 Doc. 15 at 9.

According to Petitioner, on April 13, 2009, he made an unequivocal verbal

request to invoke his right to self-representation and then made several written

requests, but the trial court ignored all those requests. Doc. 35 at 13. Petitioner

asserts that had appellate counsel challenged the trial court’s failure to conduct

a Faretta inquiry, the outcome of his appeal would have been different. Id. at

15-15.

For context, the Court summarizes the relevant record evidence. In May

2008, Petitioner was arrested and soon charged by Information with attempted

first degree murder (count one); possession of a firearm by a convicted felon

3 Faretta v. California, 422 U.S. 806 (1975).

4 Petitioner initially appears to frame Ground One as a claim of trial court error;

however, in his memorandum and his supplemental reply, he makes clear that Ground

One is a claim of ineffective assistance of appellate counsel. See Doc. 15 at 23; Doc. 35

at 12.

(count two); three counts of child abuse (counts three, four, and five); felony

battery (count six); violating an injunction (count seven); aggravated battery

upon pregnant female (count eight); and aggravated assault (count nine). Resp.

Ex. A at 16; see also State v. Stewart, No. 16-2008-CF-007205 (Fla. 4th Cir.

Ct.).5 The trial court appointed the Public Defender’s Office to represent

Petitioner, and throughout the trial proceedings Assistant Public Defenders Mr.

Ian Weldon and Ms. Melina Buncome6 represented Petitioner.7 Resp. Ex. A at

21.

On April 13, 2009, the trial court conducted a pretrial status conference,

during which it acknowledged it received a letter from Petitioner requesting

that another attorney be appointed because he did not agree with Ms.

Buncome’s request for a continuance. Resp. Ex. H at 484. During the status

conference, Petitioner advised the trial court that he believed Ms. Buncome’s

representation was prejudicial because she is a woman and the questions she

asked him about the facts of his case led him to believe she sympathized with

5 The Court takes judicial notice of Plaintiff’s state court docket. See McDowell

Bey v. Vega, 588 F. App’x 923, 927 (11th Cir. 2014) (holding that district court did not

err in taking judicial notice of the plaintiff’s state court docket when dismissing § 1983

action); see also Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (“[D]ocket

sheets are public records of which the court could take judicial notice.”).

6 The pretrial and trial transcripts contain Ms. Buncome’s prior name, Ms.

Buncome-Williams.

7 Mr. Weldon and Ms. Buncome alternated as lead counsel during pretrial

proceedings and both were present and represented Petitioner during trial.

the female victim. Id. at 785. When the trial court asked Ms. Buncome about

Petitioner’s allegations, she denied exemplifying any bias toward the victim. Id.

at 489. The state also advised the trial court that since her appointment, Ms.

Buncome had conducted a lot of work on Petitioner’s case, deposed ten of the

eighteen category A witnesses, and participated in discovery. Id. After

considering the attorneys’ statements, the trial court denied Petitioner’s

request to discharge Ms. Buncome and appoint conflict counsel. Id. at 492. The

following exchange then occurred:

THE DEFENDANT: Can I represent myself?

THE COURT: You can represent yourself?

THE DEFENDANT: I’d like to represent myself.

THE COURT: All right. May 21st?

THE CLERK: Yes, Your Honor.

THE COURT: Put this case back on for this Thursday

the 16th for a Faretta inquiry, status hearing. If you

want to represent yourself you certainly can.

THE DEFENDANT: I should have a paid lawyer.

THE COURT: You what?

THE DEFENDANT: I said until I get a paid lawyer, I

should have a paid lawyer but I would like to represent

myself.

THE COURT: Yeah, if you retain a lawyer they can

always come in.

THE DEFENDANT: All right.

THE COURT: Understand your trial date is set for

June 22nd, that’s not going to change because you hire

a lawyer.

THE DEFENDANT: I understand.

THE COURT: If you hire one, hire one with the

understanding the trial is June 22nd. All right. We’ll

see you on Thursday.

Id. at 492-93. The trial court conducted another status conference on May 21,

2009, but it is unclear if it held a Faretta inquiry. See Stewart, No. 16-2008-CF-

007205.

The state court docket shows that on June 3, 2009, Petitioner filed with

the trial court a “Motion of Defendant’s Waiver of Representation by Counsel.”

Id. In the motion, Petitioner acknowledged that the trial court advised against

self-representation, but requested to waive his right to counsel and proceed pro

se under Faretta. Id. In support of his request, Petitioner argued that his

counsel refused to file motions that Petitioner requested she file. Id. The next

day, June 4, 2009, the trial court conducted a partial hearing on Petitioner’s

motion to suppress. Resp. Ex. A at 272-322. Petitioner was present for the

hearing but he did not request a Faretta inquiry nor did he mention his pending

pro se motion to discharge counsel. See generally id. On June 12, 2009, the trial

court conducted the second part of the suppression hearing, during which

Petitioner offered testimony supporting the motion to suppress. Id. at 395-433.

Petitioner again did not request a Faretta inquiry nor did he mention his

pending June 3, 2009, pro se motion. See generally id.

On June 18, 2009, the trial court conducted a final pretrial conference,

during which defense counsel requested a continuance because she wished to

depose two more witnesses before trial. Id. at 324-27. The trial court discussed

trial counsel’s request with Petitioner, and Petitioner advised that he

understood the circumstances of counsel’s request and explained that he too

wished to depose the two witnesses before trial. Id. at 333. When the trial court

asked whether Petitioner had any other issues he wished to discuss, Petitioner

advised only that he agreed to the continuance. Id. He did not request a Faretta

inquiry, nor did he mention any prior request about self-representation. Id. at

324-27.

The state court docket indicates the trial court conducted monthly

pretrial conferences between July 2009 and November 2009. Stewart, No. 16-

2008-CF-007205. Only the October 2009, pretrial conference has been

transcribed and made part of the record before the Court. See Resp. Ex. A at

344-48. Petitioner was present at that status hearing, but he did not request a

Faretta inquiry or ask the trial court to proceed pro se.

On December 7, 2009, before jury selection began on the attempted first

degree murder count and the possession of a firearm by a convicted felon count,

defense counsel advised the trial court that Petitioner wished to address the

court.8 Id at 351. Petitioner then advised the trial court that he did not trust

trial counsel and she refused to file pretrial motions he asked her to pursue. Id.

at 353-55. Ultimately, the trial court found no ineffective assistance or

misconduct regarding Petitioner’s allegations and proceeded with jury

selection. Id. at 363. Petitioner never made a request for a Faretta inquiry, nor

did he advise the trial court he wished to proceed pro se. Id. at 351-68.

During jury selection, Petitioner had several outbursts, accused the bailiff

of giving him a poisonous sandwich during lunch, and poured a cup of water

down the front of his chest and pants. Resp Ex. B at 75, 119-20, 125. The trial

court addressed Petitioner several times during these events, but again, he

never requested a Faretta inquiry. Likewise, once the trial began, Petitioner

claimed he was incompetent, exclaimed that his leg hurt and requested to be

returned to jail, and ultimately forced officials to take him to the hospital after

using a pencil to perpetrate a self-inflicted wound. Resp. Ex. D at 7-15. The trial

court addressed Petitioner’s actions and conducted colloquies with Petitioner.

It determined him to be competent to proceed, finding that his sudden claim of

incompetence was a delay tactic and in far contrast to Petitioner’s actions and

statements to the trial court in all the appearances preceding trial. Id. at 15.

During these events, Petitioner never requested a Faretta inquiry.

8 The state only tried Petitioner on counts one and two, and upon defense

counsel’s request, the trial court agreed to a bifuricated trial on those two counts.

The jury found Petitioner guilty of the lesser included offense of

attempted second degree murder with a finding that Petitioner discharged a

firearm during the commission of the offense. Id. at 460. After further testimony

and considering evidence from the state, the jury then found Petitioner guilty

of possession of a firearm by a convicted felon.9 Id. at 474. At sentencing,

Petitioner addressed the trial court, but he never mentioned a request to

proceed pro se or a Faretta inquiry. Resp. Ex. A at 387-94. The trial court

adjudicated Petitioner as an HFO and sentenced him on count one to a life term

of incarceration with a twenty-year minimum mandatory, and a thirty-year

term with a three-year minimum mandatory as to count two. Resp. Ex. A at

223-29.

Petitioner, with help from appellate counsel, sought a direct appeal. He

raised two issues: (1) the trial court erred in denying Petitioner’s motion to

suppress, and (2) Petitioner’s rights were violated when the sentencing court

rather than the jury made the finding that Petitioner qualified as an HFO

warranting the imposition of an enhanced sentence. See generally Resp. Ex. E.

The state filed an answer brief, Resp. Ex. F, and the First District Court of

Appeal per curiam affirmed Petitioner judgment and sentences without a

written opinion, Resp Ex. G.

9 The state nol prossed the other counts in the Information. Resp. Ex. A at 386.

Petitioner now argues that appellate counsel was ineffective for failing

raise a claim on direct appeal that the trial court erred in not conducting a

Faretta inquiry. Doc. 15 at 9. Petitioner raised this claim when he filed with the

First DCA a petition under Florida Rule of Appellate Procedure 9.141. Resp.

Ex. N at 6-16. The First DCA denied the claim on the merits. Resp. Ex. O. As

such, the Court addresses the issue in accordance with the deferential standard

for federal court review of state court adjudications.

The obligation to conduct a Faretta hearing, at which the trial court

advises a defendant of the dangers and disadvantages of self-representation, is

triggered by the defendant’s “clear and unequivocal” assertion of a desire to

represent himself. See Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.

1990) (“In recognition of the thin line that a district court must traverse in

evaluating demands to proceed pro se, and the knowledge that shrewd litigants

can exploit this difficult constitutional area by making ambiguous self-

representation claims to inject error into the record, this Court has required an

individual to clearly and unequivocally assert the desire to represent himself.”);

Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir. 1986) (“Insofar as the

desire to proceed pro se is concerned, [a] petitioner must do no more than state

his request, either orally or in writing, unambiguously to the court so that no

reasonable person can say that the request [to proceed pro se] was not made.”).

The only record evidence supporting Petitioner’s assertion that he made a

request for a Faretta inquiry are his statements at the April 13, 2009, pretrial

hearing, and his June 3, 2009, pro se motion. Resp. Ex. A at 259-71; see Stewart,

No. 16-2008-CF-007205. But Petitioner’s April 13, 2009, conditional request

was not sufficiently clear and unambiguous as to mandate the purviews of

Faretta. Also, after Petitioner filed his June 3, 2009, pro se motion, the trial

court conducted several pretrial conferences, and Petitioner never mentioned

his pending June 3, 2009, motion nor requested a Faretta inquiry. See generally

Stewart, No. 16-2008-CF-007205.

To that end, even assuming Petitioner’s April 13, 2009, statements and

his June 3, 2009, motion should have prompted the trial court to conduct a

Faretta inquiry, “[a] defendant can waive his Faretta rights.” McKaskle v.

Wiggins, 465 U.S. 168, 182 (1984). Notably, “[e]ven if defendant requests to

represent himself, . . . the right may be waived through defendant’s subsequent

conduct indicating he is vacillating on the issue or has abandoned his request

all together.” Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982); see also

Gill v. Mecusker, 633 F.3d 1272, 1296 (11th Cir. 2011). Petitioner’s subsequent

acquiescence and acceptance of assistance from defense counsel constituted a

waiver of his Faretta rights and/or abandonment of any invocation of his right

to represent himself. Thus, Petitioner cannot demonstrate that but for appellate

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

For these reasons, the Court concludes that the state court’s adjudication

of this claim was neither contrary to nor an unreasonable application of clearly

established federal law, and it is not based on an unreasonable determination

of the facts considering the evidence presented in the state court proceeding.

See 28 U.S.C. § 2254(d); Gill, 633 F.3d at 1296 (holding state court’s

adjudication of Faretta claim entitled to deference because invocation of right

to self-representation was equivocal and the petitioner’s conduct suggested a

waiver of his Faretta rights). Ground One is denied.

B. Ground Two

Petitioner argues that his speedy trial rights were violated. See Doc. 15

at 11. Although difficult to decipher, he appears to raise this issue through three

sub-claims. First, he alleges that his trial counsel, Mr. Weldon, acted

ineffectively for failing to adequately explain the details of his speedy trial

rights before waiving those rights and moving for a continuance in October

2008; and had trial counsel properly informed Petitioner, Petitioner would not

have waived speedy trial and the charges would have been discharged. Id. at

25. Second, he argues that his court-appointed postconviction counsel, Mr.

Donald Mairs, was ineffective for failing to adequately argue the above

ineffective assistance of trial counsel claim during the evidentiary hearing on

his Florida Rule of Criminal Procedure 3.850 motion. Id. Third, Petitioner

appears to argue in his supplemental reply that his appellate counsel was

ineffective for failing to raise on direct appeal a claim that Petitioner’s trial

counsel was ineffective for failing to invoke Petitioner’s speedy trial rights and

prevent his prosecution. Doc. 35 at 21. The Court addresses these sub-claims in

turn.

i. Trial Counsel and Postconviction Counsel

In ground five of his Rule 3.850 motion, Petitioner raised a claim that

trial counsel was ineffective for failing to invoke Petitioner’s speedy trial rights

or adequately explain the consequences of waiving those rights when asking for

a continuance. Resp. Ex. H at 9. The trial court granted an evidentiary hearing

on the claim, and appointed Mr. Mairs to represent Petitioner at the hearing.

Id. at 286; see also Stewart, No. 16-2008-CF-7205. At the evidentiary hearing,

the trial court considered testimony from Petitioner, Mr. Weldon, and Ms.

Buncome. Resp. Ex. H at 581. The trial court later denied the claim:

Defendant avers counsel was ineffective for

failing to explain the details of speedy trial to

Defendant prior to moving for a continuance.

Defendant states he did not sign a waiver of his speedy

trial rights and was not aware that a continuance

would, in effect, waive those rights. Defendant asserts

that, had counsel not waived Defendant’s speedy trial

rights, Defendant’s case would not have gone to trial

within 175 days of his arrest, and Defendant’s case

would have to be discharged.

The federal and state constitutions guarantee a

right to speedy trial for an accused.[] “[E]very person

charged with a crime shall be brought to trial within 90

days of arrest if the crime charged is a misdemeanor, or

within 175 days of arrest if the crime charged is a

felony.” Fla. R. Crim. P. 3.191. The rule requires the

State to bring the defendant to trial within 175 days;

however, the remedy for a violation is not an automatic

discharge. See State v. Naveira, 873 So. 2d 300, 305

(Fla. 2004). “[A]t any time after the expiration of the

prescribed time period, the defendant may file a

separate pleading entitled ‘Notice of Expiration of

Speedy Trial Time,’ and serve a copy on the prosecuting

authority.” Fla. R. Crim. P. 3.191(p)(2). A trial court

shall hold a hearing on the notice no later than five

days from the date of the filing of the notice. Fla. R.

Crim. P. 3.191(p)(3). The rule further provides that the

defendant be brought to trial within ten days unless

one of the reasons set forth in subdivision (j) exists.[]

Id. Only when the defendant is not brought to trial

within ten days and none of the reasons set forth in

subdivision (j) exist may the defendant be “forever

discharged” of the crime. Id.

Any action causing a delay in the prosecution

that is attributable to the defendant, however, acts as

a waiver of that right. State v. Nelson, 26 So. 3d 570,

574 (Fla. 2010). When a defense motion for continuance

made prior to the expiration of the speedy trial period

is granted, waiver will be presumed “because this

action causes a delay in the prosecution that is

attributable to the defendant.” Id. at 576. This is true

even where the motion for continuance is made over the

defendant’s objection or without his consent. McKenzie

v. State, 29 So. 3d 272, 282 (Fla. 2010).

Defendant was arrested on May 15, 2008. On

October 16, 2008, defense counsel made an oral motion

for continuance, which the trial court granted.

Therefore, because this request for continuance was

made prior to the expiration of the 175 days, it acted as

a waiver of Defendant’s speedy trial rights.

[At the evidentiary hearing,] Weldon testified

that trial was set for October 20, so he moved for a

continuance on October 16, since the victim showed up

for trial, despite not showing up previously, including

for her deposition. Weldon testified the victim had not

been deposed, and he felt the trial preparation was

more important than requiring a speedy trial when the

victim in the attempted murder case had not yet been

deposed. Weldon testified he believed this was in his

client’s best interest. This Court finds counsel’s

decision entirely reasonable under the circumstances

and finds no deficiency.

Moreover, this Court finds Defendant has not

sufficiently proven prejudice. At the evidentiary

hearing, Defendant stated he believed his charges

would have been discharged because Weldon stopped

working on the case after making the continuance.

Even if this were true, it does not mean the State would

not have been prepared to prove its case at trial. Rather

at minimum, the State had gotten the victim to show

up in support of its case. Further, as indicated above,

failure to bring a defendant to trial within 175 days of

arrest does not automatically result in the discharge of

his charges. Rather, there is a recapture period in

which the State may still have prosecute[d] the

charges. Accordingly, this Court finds Defendant is not

entitled to relief on this Ground.

Resp. Ex. H at 300-02 (record citations omitted). Petitioner appealed, and the

trial court appointed Mr. Charles Fletcher to represent Petitioner during his

postconviction appeal. Id. at 569. After filing an initial brief, the First DCA

granted Mr. Fletcher’s request to withdraw, and Petitioner filed a pro se initial

brief. See Stewart v. Florida, No. 1D18-0921 (Fla. 1st DCA); see also Resp. Ex.

I. In his pro se brief, Petitioner argued that Mr. Mairs acted ineffectively during

the evidentiary hearing because he failed to adequately argue or present

witnesses to support Petitioner’s ineffective assistance of trial counsel claim

about his speedy trial rights. Id. at 20. The state filed an answer brief arguing

that the trial court did not err in denying this ineffective assistance of trial

counsel claim, and to the extent that Petitioner asserted his postconviction

counsel was ineffective, that claim lacked merit as “Florida law does not

recognize a right to postconviction counsel.” Resp. Ex. J at 17. The First DCA

per curiam affirmed the trial court’s order without a written opinion. Resp. Ex.

K. The Court addresses Petitioner’s ineffective assistance of trial counsel and

postconviction counsel claims in accordance with the deferential standard for

federal court review of state court adjudications.

As to his ineffective assistance of trial counsel claim, the record shows

that on October 16, 2008, during Petitioner’s initial final pretrial, Mr. Weldon

moved to continue. See Stewart, No. 16-2008-CF-07205. At the evidentiary

hearing, Mr. Weldon testified that he requested the continuance over

Petitioner’s objection because he had not yet deposed the victim who had agreed

to appear for the October 20, 2008, trial date.10 Resp. Ex. H at 610-11. According

to Mr. Weldon, he believed preparation for trial was in Petitioner’s best interest

and more important than Petitioner’s speedy trial and made the strategic

decision to request the continuance. Id. at 610. And the Court’s review of the

10 The victim was Petitioner’s wife who often refused to cooperate with the

prosecution.

evidence ultimately presented at trial, supports Mr. Weldon’s actions. Indeed,

the crimes occurred in a public parking lot in Jacksonville Beach, Florida;

during the daytime hours; and several eyewitnesses testified that they saw

Petitioner get out of a vehicle with a firearm before firing several shots at the

victim who was sitting in the driver’s seat. See generally Resp. Ex. D. Some of

those shots struck the victim and a few eyewitnesses then helped the victim and

called 911. Thus, Petitioner cannot show that but for trial counsel’s alleged

errors, the state would have discharged the charges. Based on Mr. Weldon’s

evidentiary hearing testimony and upon thorough review of the record and the

applicable law, the Court finds that the state court’s decision to deny

Petitioner’s claim was neither contrary to nor an unreasonable application of

Strickland, and it was not based on an unreasonable determination of the facts

given the evidence presented to the state court. See 28 U.S.C. § 2254(d).

As to any claim that postconviction counsel acted ineffectively during the

evidentiary hearing, federal law also provides that there is no constitutional

right to counsel in state postconviction proceedings. See Pennsylvania v. Finley,

481 U.S. 551, 555 (1987); Jones v. Crosby, 137 F.3d 1279, 1280 (11th Cir. 1998).

Petitioner has thus failed to show that he is in custody in violation of the

Constitution or laws of the United States; and he is not entitled to federal

habeas relief on that issue.

ii. Appellate Counsel

Finally, to the extent that Petitioner claims in his supplemental reply

that his appellate counsel was ineffective for failing to raise on direct appeal a

claim about the violation of Petitioner’s speedy trial rights, arguments raised

for the first time in a reply brief are not properly before a reviewing court. See

Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (citations

omitted). Further, this claim was never presented to the state court, and thus

it is unexhausted and procedurally barred. If Petitioner seeks to argue that the

Court should excuse the procedural bar based on the purview of Martinez, that

argument fails. See Doc. 35 at 21. “Martinez [does] not extend or apply to excuse

procedurally defaulted claims of ineffective assistance of appellate counsel.”

Moser v. Sec’y, Dep’t of Corr., 803 F. App’x 382, 383 (11th Cir. 2020). Thus,

Ground Two is denied.

C. Ground Three

Petitioner argues that his trial counsel was ineffective for failing to

challenge the legality of his HFO designation and life sentence for count one –

attempted second degree murder. See Doc. 15 at 13.11 In support of this

argument, Petitioner alleges two sub-claims. See id. at 13; Doc. 35 at 23-26.

First, Petitioner argues that his trial counsel failed to object when the judge,

11 In his supplemental reply, Petitioner clarifies that he is raising an ineffective

assistance of trial counsel claim. See Doc. 35 at 23.

rather than the jury, made the necessary findings to impose the HFO sentence.

Doc. 15 at 13. Second, Petitioner appears to argue that his trial counsel was

ineffective for failing to object to the trial court improperly reclassifying his

conviction for count one under § 775.087, Florida Statutes, where the use of a

firearm is an essential element of attempted second degree murder. Doc. 15 at

13; Doc. 35 at 23.

Petitioner raised his first sub-claim in ground seven of his Rule 3.850

motion. Resp. Ex. H at 135. The trial court denied the claim:

Defendant alleges counsel was ineffective when

he failed to object to the judge making the necessary

findings to impose an HFO sentence. Specifically,

Defendant maintains he was denied his right to a trial

by jury when the judge, not the jury, made findings

necessary to increase his sentence.

This Court finds Defendant’s arguments are

essentially centered on the contention that any fact

used to enhance a sentence in excess of the standard

guidelines must be submitted to, and found by, a jury.

This is the very rationale expressed in Apprendi v. New

Jersey, 530 U.S. 466 (2000), in that the statute under

which that defendant was sentenced, improperly

removed from the jury findings of fact regarding the

offense at issue, which could result in a sentence

greater than the maximum for the offense. Apprendi,

530 U.S. at 466. Florida’s HFO statute is a sentencing

statute based solely upon a defendant’s status as a

recidivist felon. See § 775.084, Fla. Stat. (2008).

Apprendi specifically reasoned that recidivism does not

relate to the commission of the offense itself and is,

therefore, not a jury question. Apprendi, 530 U.S. at

488-89, 490 (concluding “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable

doubt.”). Incidentally, determining whether a

defendant qualifies for an HFO sentence is

“independent of the question of guilt in the underlying

substantive offense” and does not require submission to

the jury. Wright v. State, 780 So. 2d 216, 217 (Fla. 5th

DCA 2001).

This argument has been repeatedly rejected by

Florida courts. See Dinkens v. State, 976 So. 2d 660,

662 (Fla. 1st DCA 2008); Jones v. State, 791 So. 2d 580,

581 (Fla. 1st DCA 2001); Saldo v. State, 789 So. 2d

1150, 1151 (Fla. 3d DCA 2001); Gordon v. State, 787 So.

2d 892, 893-94 (Fla. 4th DCA 2001); Wright, 780 So. 2d

at 216. Moreover, in designating Defendant a[n] HFO,

the trial court only considered Defendant’s prior

convictions, showing he is a recidivist felon. Counsel,

therefore, cannot be deemed ineffective for failing to

make a meritless objection. See Schoenwetter v. State,

46 So. 3d 535, 546 (Fla. 2010) (finding counsel cannot

be deemed ineffective for failing to make a meritless

objection). Accordingly, Defendant is not entitled to

relief on this ground. 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.”).

Resp. Ex. H at 304-05 (record citations omitted). Petitioner appealed the trial

court’s denial, and in his pro se brief on appeal, Petitioner argued that the trial

court erred in reclassifying his conviction for count one to a first degree felony

under § 775.087 “when a firearm is already an essential element of the crime.”

Resp. Ex. I at 15. In its answer brief, the state argued that the trial court did

not err in denying ground seven. Resp. Ex. J at 3. It further argued that while

Petitioner’s reclassification argument was not cognizable in a Rule 3.850

postconviction motion, it was without merit because “[e]ven though [Petitioner]

used a firearm in the commission of his offens[e], a firearm or weapon is not an

essential element to the underlying charge of attempted murder. See Section

782.04, Florida Statutes.” Id. at 12. The First DCA per curiam affirmed the

denial without a written opinion. Resp. Ex. K.

The Court addresses these claims in accordance with the deferential

standard for federal court review of state court adjudications. In doing so, the

Court finds persuasive the trial court’s orders denying Petitioner’s Florida Rule

of Criminal Procedure 3.800(a) motions containing allegations challenging the

legality of Petitioner’s sentence for count one. In one order denying a Rule

3.800(a) motion, the trial court found:

Defendant was charged by Information dated

June 4, 2008 with Attempted First Degree Murder in

Count 1 (a first degree felony), Possession of a Firearm

by a Convicted Felon in Count 2 (a second degree

felony), and several other counts.[] Specifically, as to

Count 1, the Information alleged that during the

commission of the crime, the Defendant did “display,

carry, use, threaten to use, or attempt to use a firearm,

and did actually possess and discharge a firearm,”

contrary to the provisions of 775.087(2)(a)2, among

others. On December 9, 2009, the Defendant was found

guilty after [a] jury trial of Attempted Second Degree

Murder in Count 1 (a lesser-included offense). The jury

further found that the Defendant discharged a firearm

during the commission of the Attempted Second Degree

Murder. The Defendant was also found guilty as

charged of Possession of a Firearm by a Convicted

Felon, with actual possession of a firearm, in Count 2.

On February 16, 2010, the Court adjudicated the

Defendant guilty on both counts and sentenced him as

an Habitual Felony Offender to: life in prison with a 20-

year mandatory minimum for discharge of a firearm as

to Count 1, and thirty years in prison with a 3-year

mandatory minimum for possession of a firearm as to

Count 2.

. . . .

In the Motion, Defendant alleges that his life sentence

with a 20-year mandatory minimum as to Count 1 is

illegal, based on the following grounds: 1) as a

reclassified first degree felony,[FN2] the maximum

sentence on Count 1 was thirty years; and 2) the

Information did not allege that the discharge of the

firearm caused great bodily harm, pursuant to

775.087(2)(a)3.

As to Ground 1, Defendant claims that because

Count 1 was a 1st degree felony, the maximum

sentence the Court could have imposed was thirty

years. That would be correct, if the Defendant was not

also a Habitual Felony Offender (“HFO”). The

Defendant ignores that fact that the Court sentenced

him as an HFO pursuant to Florida Statute 775.084.

The Defendant was aware of his status as an HFO and

the State’s intent to have him sentenced to life in

prison, as the Defendant was hand served by the State

on June 5, 2008 with the required Notice of Intent to

Classify the Defendant as a[] Habitual Felony

Offender. As an HFO, the Court could permissibly and

legally sentence Defendant to life in prison. Florida

Statute 775.084(4)(a)1 provides that “[t]he court . . .

may sentence the habitual felony offender as follows: .

. . In the case of a life felony or a felony of the first

degree, for life.” (emphasis added). Thus, Defendant’s

life sentence for the first degree felony in Count 1 is

legal.

As for Ground 2, the Defendant is correct that the

State did not allege in the Information that the

discharge of the firearm caused great bodily harm,

pursuant to 775.087(2)(a)3. Moreover, the jury was not

asked to and did not make such a finding on the verdict

form. However, ·the Defendant is incorrect in that the

absence of such language does not invalidate the

sentence in Count 1. Such language is not required if

the State is not seeking to sentence the Defendant

under the 10/20/Life provisions which impose a

mandatory minimum term of 25 years to life in prison.

In this case, the State was NOT seeking such a

mandatory minimum. Instead, the State sought and

the Defendant was sentenced to a 20-year mandatory

minimum under the 10/20/Life provisions for

discharging a firearm, specifically 775.087(2)(a)2. The

Defendant was NOT sentenced to a mandatory life

sentence, as he claims in the Motion. Therefore, the

State was not required to add the language alleging

great bodily harm, as Defendant suggests. As such,

Defendant’s sentence in Count 1, which includes a 20-

year mandatory minimum, is legal.

[FN2] Defendant acknowledges that Attempted Second

Degree Murder is a second degree felony, but in this

matter was reclassified to a first degree felony. Florida

Statute 775.087 provides for the reclassification or

increase in degrees of crimes if during the commission

of the crime a defendant did “display, carry, use,

threaten to use, or attempt to use a firearm.” In this

matter, the Information included this reclassification

language, and the jury specially found that the

Defendant indeed used and discharged a firearm

during the commission of the offense, contrary to the

provisions of 775.087(2)(a)2.

Resp. Ex. Q at 16-18 (record citations omitted). Likewise, in another order, the

trial court found the “use or possession of a firearm is not an essential element

of attempted second degree murder.” Resp. Ex. W at 26 (citing Connolly v. State,

172 So. 3d 893 (Fla. 3d DCA 2015) (“Use or possession of a firearm . . . is not an

essential element of second degree murder . . . .”)). On this record, the Court

cannot find that Petitioner’s sentence for count one is illegal. And thus, upon

thorough review of the record and the applicable law, the Court finds that the

state court’s decision to deny Petitioner’s claims was neither contrary to nor an

unreasonable application federal law, and it was not based on an unreasonable

determination of the facts given the evidence presented to the state court. See

28 U.S.C. § 2254(d). Further, to the extent that any aspect of these ineffective

assistance of trial counsel claims were not presented to the state court and not

entitled to deference, the Court finds that Petitioner has failed to demonstrate

that but for trial counsel’s alleged errors, the outcome would have been

different. Ground Three is denied.

D. Ground Four

Although difficult to decipher, Petitioner appears to raise three sub-

claims. First, Petitioner asserts that his trial attorney was ineffective for failing

to object to the judge’s responses to the jury’s questions submitted during

deliberations. Doc. 15 at 15. Second, Petitioner argues that his trial counsel was

ineffective for failing to request that the trial court instruct the jury on only

attempted first degree murder. Id. at 29. And third, he claims his appellate

counsel was ineffective for failing to raise on direct appeal a claim that trial

counsel was ineffective for failing to request that the trial court instruct the jury

on only attempted first degree murder. Id. at 32. The Court addresses each sub-

claim in turn.

i. First Sub-Claim

In his Rule 3.850 motion, Petitioner raised two grounds challenging trial

counsel’s conduct during the trial court’s consideration of the jury questions.

Resp. Ex. H at 226. The trial court denied the arguments:

Defendant maintains counsel was ineffective for

failing to aid the trial court in formulating responses to

the jury’s questions during deliberations. The jury

asked two questions. First, the jury asked, “Are we

allowed to consider our impression of [Defendant’s]

mental status?” Second, the jury asked, “can we see the

transcripts of Lavert’s [sic] interview?” After the jury

submitted the questions, the judge suggested

answering them “no and no.” The State agreed with the

answers, stating, “neither one of them are in evidence.”

Defense counsel made no statements, and the judge

advised the jury as discussed. After advising the jury,

the judge asked if there were any objections to his

instruction, to which the State replied, “no.” The record

reflects no response from defense counsel.

1. First Juror Question

As to the first question, Defendant avers counsel

should have suggested the trial judge inquire whether

the jury was concerned with Defendant’s “mental

status” as it relates to Defendant’s credibility, intent,

or competency. Defendant makes alternative

arguments based on what the jury was possibly

referencing.

If the jury was referring to Defendant’s

credibility or reliability, Defendant suggests counsel

should have asked the judge to reinstruct the jury on

weighing the evidence, on evaluating the DVD of

Defendant’s interview, or “specifically informing the

jury that [the DVD of Defendant’s interview], and its

contents are evidence from which they may find a

reasonable doubt as to Defendant’s guilt[] and upon

which they may otherwise rely in deciding the case.”

The jury was provided a copy of the jury

instructions to use during deliberations, which

contained the instruction on weighing the evidence.

Thus, there can be no prejudice in the trial court not

reinstructing them on this issue when they had the

instruction with them during deliberations. As for

informing the jury specifically regarding the DVD of his

interview, such an instruction on a specific piece of

evidence would have been improper for the trial court

to give, and counsel, therefore, cannot be ineffective for

failing to request such an instruction. See

Schoenwetter, 46 So. 3d at 546 (“Counsel cannot be

deemed ineffective for failing to make a meritless

argument.”). Moreover, since such a request would

have been denied, there is no reasonable probability the

outcome would have changed had counsel requested

such instructions.

If the jury was referring to Defendant’s intent to

commit the crime, Defendant maintains counsel should

have requested the trial court instruct the jury they

may “consider Defendant’s conduct, demeanor, or other

observable fact apparent from [the DVD of Defendant’s

interview] because it is evidence in the case which they

may consider in deciding whether Defendant acted

“intentional[ly]” or “with intent.” Again, this Court

notes an instruction on a specific piece of evidence

would have been improper, and counsel cannot be

deemed ineffective for failing to make a meritless

argument. Moreover, in the set of jury instructions sent

back with the jury, there were instructions on the

intent necessary for each offense and lesser included

offense. Therefore, this Court finds the jury was

properly instructed on the intent of all crimes.

If the jury was referring to Defendant’s

competency, Defendant alleges counsel should have

requested the trial judge inform the jury “they may only

consider such matters only to the extent that they are

discernable from observing [the DVD of Defendant’s

interview].” Competence, however, is an issue for a

judge to determine, not a jury. Fla. R. Crim. P. 3.210-

3.212. Therefore, the trial court’s response to the jury

was appropriate. Additionally, the defense had not

presented any evidence as to Defendant’s mental status

for the jury to consider and it would have likewise been

inappropriate for that reason. Moreover, in the

instructions given to the jury, there was an instruction

on “Defendant’s Statements,” in which it instructed the

jury of the following:

A statement claimed to have been made by

the defendant outside of court has been

placed before you. Such a statement should

always be considered with caution and be

weighed with great care to make certain it

was freely and voluntarily made.

Therefore, you must determine from the

evidence that the defendant’s alleged

statement was knowingly, voluntarily and

freely made . . . .

If you conclude the defendant’s out of court

statement was not freely and voluntarily

made, you should disregard it.

Therefore, this Court finds no deficiency on the part of

counsel and no prejudice as a result of counsel’s actions.

Accordingly, Ground Eleven is denied as to counsel’s

actions regarding the first juror question.

2. Second Juror Question

Defendant maintains counsel should have

advised the court to tell the jury that while they could

not have the transcript of the Defendant’s interview

because that was not in evidence, they could have all or

a part of the DVD played back to them as many times

as they wished. Alternatively, Defendant states counsel

should have suggested that the jury be provided a

means to view the video in the jury room.

Florida Rule of Criminal Procedure 3.410(b)

states that if the jury requests transcripts of testimony,

the judge should deny the request for transcripts, but

inform the jurors that they may, however, request to

have any testimony read or played back, which in turn

“may or may not be granted at the court’s discretion.”

This Court finds no deficiency on the part of counsel in

this regard. At the evidentiary hearing, both counsel

and the State indicated that the jury was given a laptop

to watch the DVD again if they so desired. Thus, while

the trial court did not offer a playback of the testimony

in court, the jurors had the ability to re-watch the

interview DVD. Moreover, since the jury had the means

in which to watch the interview during deliberations,

there can be no prejudice from the trial judge denying

access to transcripts and counsel agreeing to that

response.

As to Defendant’s alternative argument that the

jurors should have been given the means to watch the

DVD in the jury room, this Court finds counsel cannot

be deemed deficient as this was done in this case.

Therefore, counsel cannot be deemed ineffective for

failing to make that meritless argument. Defendant is,

accordingly, not entitled to relief on this basis.

3. Count Two Prejudice

Lastly, Defendant suggests the alleged

deficiencies above prejudiced him on Count Two as well

because the jury was unable to review the DVD of his

interview, which included his statements that he only

had the gun “because he took it from Lavonta Stewart

to prevent her from shooting him.” This Court finds the

jury was properly instructed on Possession of a

Fireman by a Convicted Felon. Those instructions do

not allow for acquittal even if Defendant can give a

reason as to why he had the gun. The jury needed only

to find that the gun was in Defendant’s care, custody,

possession, or control, which Defendant does not deny.

Thus, this Court finds no deficiency on the part of

counsel as outlined above, nor any prejudice as is

alleged as to Count Two. Accordingly, Defendant is not

entitled to relief.

Resp. Ex. H at 307-11 (record citations omitted). When addressing a similar

ground, the trial court explained:

Defendant asserts counsel performed deficiently

and prejudiced his case when he failed to object to the

judge’s decision to tell the jurors they could not consider

Defendant’s “mental status.” During jury deliberations,

the jury sent two questions to the judge, one of which

read: “[a]re we allowed to consider our impression of

[Defendant’s] mental status?” In response, the judge

simply informed the jury, “[t]he answer is no.” Defense

counsel did not state any opinion on the matter.

As stated in the “Rules for Deliberation”

explained to the jurors and included in the standard

jury instructions: the “case must be decided only upon

the evidence that you have heard from the testimony of

the witnesses and have seen in the form of the exhibits

in evidence and these instructions.” Fla. Std. Jury

Instr. (Crim.) 3.10[.] In the instant case, there was no

direct evidence to show Defendant’s “mental status.”

The trial judge’s response was proper, and any

objection would have been meritless. Counsel,

therefore, cannot be held ineffective, and Defendant is

not entitled to relief. See Schoenwetter, 46 So. 3d at

546; Hitchcock, 991 So. 2d at 361.

Resp. Ex. H at 300 (record citations omitted). Petitioner appealed the trial

court’s denial, Resp. Ex. I at 30, and the First DCA per curiam affirmed the

denial without a written opinion, Resp. Ex. K.

The Court addresses the sub-claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court finds that the state court’s

decision to deny Petitioner’s claim was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

determination of the facts given the evidence presented to the state court. See

28 U.S.C. § 2254(d). This sub-claim is denied.

ii. Second and Third Sub-Claims

As to Petitioner’s second and third sub-claims – that his trial counsel was

ineffective for failing to request that the trial court instruct the jury on only

attempted first degree murder. Doc. 15 at 29; and that his appellate counsel

was ineffective for failing to raise on direct appeal a claim that trial counsel was

ineffective for failing to request that the trial court instruct the jury on only

attempted first degree murder, id. at 32 – Petitioner does not point to a

particular motion or other record evidence showing that he ever raised these

arguments in state court. See generally Doc. 15. Petitioner also does not

reference these two sub-claims in his reply or supplemental reply. See Docs. 34,

35 at 27-30. And Respondents do not mention these two sub-claims in their

Response. See Resp. at 38-40. Thus, the Court finds the second and third sub-

claims of this Ground are unexhausted and procedurally barred and Petitioner

fails to show cause for or prejudice to excuse the default. He also does not argue

that a failure to address these issues will result in a miscarriage of justice. Thus,

Ground Four is denied.

E. Ground Five

Petitioner argues he has received newly discovered evidence that his

postconviction appellate counsel, Mr. Fletcher, failed to advise him that “all

state-level appeals and collateral attacks on any judgment must be complete

within two years from the date of the appeal in non-capital cases.” Doc. 15 at

18.

Petitioner’s claim here is based on errors committed during his

postconviction appeal and proceedings, which is not a cognizable claim for

federal habeas relief.12 See Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir.

2004) (“[W]hile habeas relief is available to address defects in a criminal

defendant's conviction and sentence, an alleged defect in a collateral proceeding

does not state a basis for habeas relief.”). Indeed, Petitioner does not allege that

12 Respondents read Ground Five as a claim that Petitioner’s appellate counsel

acted ineffectively during Petitioner’s direct appeal. Resp. at 40-43. In his

supplemental reply, however, Petitioner clarifies that he is challenging the actions his

postconviction appellate counsel took during the appeal of the trial court’s order

denying his Rule 3.850 motion. Doc. 35 at 31.

he is in custody in violation of the Constitution or laws of the United States;

and thus this issue is not properly before the Court. Ground Five is denied.

F. Ground Six

Petitioner argues that his appellate counsel was ineffective for failing to

file a Florida Rule of Criminal Procedure 3.800(b)(2) motion to preserve for

direct appeal two sentencing errors for count one. Doc. 15 at 19. According to

Petitioner, appellate counsel should have preserved and argued on direct appeal

the erroneous “imposition of a[n] HFO sentence based on the improper

enhancement of a second[]degree felony, and where the second[]degree

attempted murder [sentence] exceeded that authorized by law for a

second[]degree felony.” Id.

Petitioner admits that he did not present this ineffective assistance of

appellate counsel claim to the state court and thus it is unexhausted and

procedurally barred. Doc. 35 at 32. But he attempts to overcome any procedural

bar by arguing his Rule 3.800(a) motion filed in state court adequately

challenged the legality of his sentence on count one and the Court should

consider the issue on the merits. Id.

Assuming, for purposes of this Order, that this claim is exhausted and

properly before the Court, it still lacks merit for the reasons discussed in

Ground Three. Notably, the jury found Petitioner guilty of attempted second

degree murder with a further finding that Petitioner actually possessed and

discharged a firearm during the commission of the crime. The jury’s finding that

Petitioner possessed a firearm during the commission of the offense reclassified

the second degree felony of attempt to a first degree felony. See § 775.087(1)(b),

Fla. Stat. During sentencing, the trial court properly adjudicated Petitioner as

an HFO, which permitted the trial court to sentence Petitioner to a life term of

incarceration for the first degree felony conviction. See § 775.084 (4)(a)1, Fla.

Stat. Petitioner’s sentence for count one is legal. Thus, he cannot show that but

for appellate counsel’s alleged errors, the outcome of his trial would have been

different. Ground Six is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Second Amended Petition (Doc. 15) is DENIED and this case

is DISMISSED with prejudice.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

3. If Petitioner appeals this Order, 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.!%

DONE AND ORDERED at Jacksonville, Florida, this 7th day of June,

2023.

□ Cirmotheg Corrig oN

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Levert Stewart, #J17573

Holly Noel Simcox, Esq.

13 The Court should issue a certificate of appealability only if Petitioner makes

“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

To make this substantial showing, Petitioner “must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims debatable

or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration of

the record as a whole, the Court will deny a certificate of appealability.

39