Opinion

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

Court
District Court, M.D. Florida
Filed
Jun 9, 2023
Cited by
0 cases
Authority
More cited than 19.9%

“[An] assertion of actual innocence, by itself, is not enough.”

How later courts described this case

  • “[An] assertion of actual innocence, by itself, is not enough.”
  • setting forth the Martinez requirements
  • holding a defendant’s Sixth Amendment right to confrontation forbids the government from admitting the testimonial statement of a witness who does not appear at trial unless the witness is unavailable to testify, and the defendant had a prior opportunity for cross- examination
  • “Accordingly, we hold that a defendant alleging that counsel was ineffective for failing to object or preserve a claim of reversible error in jury selection must demonstrate prejudice at the trial, not on appeal.[”]

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CHRIS LEONARD THORNES,

Petitioner,

v. Case No. 3:20-cv-347-MMH-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Chris Leonard Thornes, an inmate of the Florida penal

system, initiated this action on March 31, 2020,1 by filing a Petition for Writ

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

proceeds on a Second Amended Petition (Doc. 11). In the Second Amended

Petition, Thornes challenges a 2014 state court (Duval County, Florida)

judgment of conviction for aggravated assault and possession of a firearm by

a convicted felon. He raises four grounds for relief. See Second Amended

Petition at 5-16. Respondents submitted a memorandum in opposition to the

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

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

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

Petition. See Response (Doc. 16). They also submitted exhibits. See Docs. 16-1

through 16-2. Thornes filed a brief in reply. See Reply (Doc. 24). He also

submitted exhibits. See Docs. 24-1 through 24-2. This action is ripe for

review.

II. Relevant Procedural History

On May 19, 2014, the State of Florida charged Thornes by second

amended information with aggravated assault (counts one and two),

possession of a firearm by a convicted felon (count three), and using a firearm

while under the influence of alcohol (count four). Doc. 16-1 at 54-56. At the

conclusion of a bifurcated trial, on June 5, 2014, the jury found Thornes

guilty of counts two and three. Id. at 90-91. The trial court declared a mistrial

as to count one based on jury deadlock, see id. at 776, and the State entered a

nolle prosequi as to count four, see id. at 140. On June 18, 2014, the trial

court sentenced Thornes to a twenty-year mandatory minimum term of

imprisonment for count two and a consecutive fifteen-year term of

imprisonment with a three-year mandatory minimum for count three. Id. at

94-102.

On direct appeal, Thornes, with the benefit of counsel, filed an initial

brief, arguing that the trial court erred when it determined Florida law

2

required the imposition of consecutive mandatory minimum sentences. Id. at

800-13. The State filed an answer brief. Id. at 826-36. Florida’s First District

Court of Appeal (First DCA) per curiam affirmed Thornes’s conviction and

sentence on July 14, 2015, id. at 838, and issued the mandate on August 11,

2015, id. at 839.

Thornes invoked the discretionary jurisdiction of the Florida Supreme

Court. Id. at 841-42. On May 26, 2017, the Florida Supreme Court accepted

jurisdiction, quashed the First DCA’s decision, and remanded the case for

reconsideration upon application of the court’s decision in Walton v. State,

208 So. 3d 60 (Fla. 2016), and Williams v. State, 186 So. 3d 989 (Fla. 2016).

Id. at 886. On July 6, 2017, the First DCA vacated Thornes’s sentence

‘because the trial court believed based on [] prior precedent that it was

required to impose consecutive mandatory minimum sentences, and . . .

remand[ed] for the trial court to exercise its discretion in deciding whether to

impose concurrent or consecutive mandatory minimum sentences.” Id. at 891.

On October 11, 2017, the trial court sentenced Thornes to a twenty-year

mandatory minimum term of imprisonment as to count two and a concurrent

fifteen-year term of imprisonment with a three-year mandatory minimum as

to count three. Id. at 894-902. Thornes did not pursue an appeal.

3

Beginning on June 26, 2018, Thornes filed three motions to correct an

illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Docs. 16-

1 at 904-06, 928-32; 16-2 at 438-43, 445-50. The postconviction court denied

relief. Docs. 16-1 at 909-11, 933-35; 16-2 at 452-55. On December 11, 2018,

Thornes filed a motion for postconviction relief under Florida Rule of

Criminal Procedure 3.850. Doc. 16-1 at 979-91. Thornes subsequently filed an

amended Rule 3.850 Motion, alleging counsel was ineffective when she failed

to: move to exclude a .38 caliber revolver (ground one); call an expert witness

to rebut testimony from Herbert Johnson that he found a projectile in his

front yard (ground two); present a defense theory that two young men fired a

shot into Johnson’s front yard (ground three); advise Thornes to testify at

trial (ground four); call evidence technician Stephanie Grimes as a witness

(ground five); present evidence that Thornes’s clothes did not contain gunshot

residue (ground six); move for a judgment of acquittal (ground seven); and

object to the introduction of a projectile into evidence (ground eight). Id. at

1025-40. The postconviction court denied relief on all grounds. Id. at 1070-82.

On January 17, 2020, the First DCA per curiam affirmed the postconviction

court’s denial of relief, Doc. 16-2 at 426, and on March 26, 2020, issued the

mandate, id. at 428.

4

On October 29, 2019, Thornes filed a state petition for writ of habeas

corpus, alleging appellate counsel was ineffective when she failed to raise on

direct appeal the claim that insufficient evidence supported Thornes’s

conviction. Doc. 16-2 at 479-87. On February 7, 2020, the First DCA

dismissed the state petition as untimely filed. Id. at 491.

III. One-Year Limitations Period

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

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

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

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

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

F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at

5

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

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

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

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

V. Governing Legal Principles

A. Standard of Review

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

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

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

2016). “‘The purpose of AEDPA is to ensure that federal habeas relief

functions as a guard against extreme malfunctions in the state criminal

justice systems, and not as a means of error correction.’” Id. (quoting Greene

v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks omitted)). As such, federal

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

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

Cir. 2011) (quotation marks omitted)).

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

court decision, if any, that adjudicated the claim on the merits. See Marshall

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

6

court need not issue a written opinion explaining its rationale in order for the

state court’s decision to qualify as an adjudication on the merits. See

Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s

adjudication on the merits is unaccompanied by an explanation, the United

States Supreme Court has instructed:

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

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

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

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

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

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

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

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

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

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States;” or

(2) “was based on an unreasonable determination of the facts in light of the

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

7

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

of federal review pursuant to § 2254 as follows:

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

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v.

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

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

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

application” clause. The “contrary to” clause allows

for relief only “if the state court arrives at a

conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court

decides a case differently than [the Supreme] Court

has on a set of materially indistinguishable facts.” Id.

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

“unreasonable application” clause allows for relief

only “if the state court identifies the correct

governing legal principle from [the Supreme] Court's

decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Id.

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

claims of state courts’ erroneous factual

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

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

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The Supreme Court has not yet defined §

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

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

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

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

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

8

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

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

determination is not unreasonable merely because

the federal habeas court would have reached a

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

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

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

738 (2010)).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

evaluated under 28 U.S.C. § 2254(d).

9

B. Ineffective Assistance of Trial and Appellate Counsel

“The Sixth Amendment guarantees criminal defendants the effective

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

performance falls below an objective standard of reasonableness and thereby

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

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

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

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

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

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct.

2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct.

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

some conceivable effect on the outcome of the

proceeding.” Id., at 693, 104 S. Ct. 2052. Counsel’s

errors must be “so serious as to deprive the defendant

10

of a fair trial, a trial whose result is reliable.” Id., at

687, 104 S. Ct. 2052.

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

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

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

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet

the prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d

1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice, which

we expect will often be so, that course should be followed.” Strickland, 466

U.S. at 697.

Claims of ineffective assistance of appellate counsel are governed by

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

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

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

instructed:

In assessing an appellate attorney’s performance, we

are mindful that “the Sixth Amendment does not

require appellate advocates to raise every non-

11

frivolous issue.” Id. at 1130-31.[3] Rather, an effective

attorney will weed out weaker arguments, even

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

to establish prejudice, we must first review the

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

performance will be deemed prejudicial if we find

that “the neglected claim would have a reasonable

probability of success on appeal.” Id.

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

prejudicial if the omitted claim would have a reasonable probability of

success on appeal. Id. at 1265.

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

deference.

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

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

131 S. Ct. at 788. But “[e]stablishing that a state

court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The

standards created by Strickland and § 2254(d) are

both highly deferential, and when the two apply in

tandem, review is doubly so.” Id. (citations and

quotation marks omitted). “The question is not

whether a federal court believes the state court’s

determination under the Strickland standard was

incorrect but whether that determination was

unreasonable — a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct.

1411, 1420, 173 L.Ed.2d 251 (2009) (quotation marks

omitted). If there is “any reasonable argument that

counsel satisfied Strickland’s deferential standard,”

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

12

then a federal court may not disturb a state-court

decision denying the claim. Richter, 562 U.S. at ---,

131 S. Ct. at 788.

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

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference — this one to a state court’s decision — when we

are considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As

such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, Thornes contends insufficient evidence supports his

conviction. Second Amended Petition at 5. He argues that no DNA or other

physical evidence demonstrates that he possessed a firearm during the

incident. Id. at 5-6. Moreover, Thornes states “no evidence of a physical injury

or assault by contact upon [the] victim” exists. Id. at 7.

The record demonstrates Thornes did not present a similar claim on

direct appeal or to the postconviction court. Doc. 16-1 at 800-13, 1025-40.

13

Therefore, he did not complete the state court process, and the claim is not

exhausted. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate

prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s

established appellate review process.”). Because any future attempt to

exhaust this claim would be futile, it is procedurally defaulted. Thornes

seemingly asserts ineffective assistance of appellate counsel as cause to

overcome his failure to exhaust. Second Amended Petition at 5 (explaining

that he did not exhaust state remedies for the claim in Ground One because

it “was abandoned by appellate counsel”).

The Eleventh Circuit Court of Appeals has stated:

A showing of ineffective assistance of appellate

counsel in failing to raise a claim on direct appeal can

constitute “cause” so long as the ineffective assistance

“occur[red] during a stage when a petitioner had a

constitutional right to counsel,” Payne v. Allen, 539

F.3d 1297, 1314 (11th Cir. 2008), and the ineffective-

assistance claim itself is “both exhausted and not

procedurally defaulted,” Ward,[4] 592 F.3d at 1157

(citing Hill v. Jones, 81 F.3d 1015, 1031 (11th Cir.

1996)). . . .

Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1365 (11th Cir.

2020). Here, Thornes had a constitutional right to counsel on direct appeal of

4 Ward v. Hall, 592 F.3d 1144 (11th Cir. 2010).

14

his state conviction and sentence; however, he did not properly exhaust a

claim that appellate counsel was ineffective when she failed to challenge the

sufficiency of the evidence. Thornes raised the ineffectiveness claim as the

sole ground of his state petition. Doc. 16-2 at 479-87. The First DCA

dismissed the state petition, citing Florida Rule of Appellate Procedure

9.141(d)(5). Id. at 491. Rule 9.141(d)(5) provides that petitions alleging

ineffective assistance of appellate counsel “shall not be filed more than 2

years after the judgment and sentence become final on direct review unless it

alleges under oath with a specific factual basis that the petitioner was

affirmatively misled about the results of the appeal by counsel.” Because the

First DCA relied on an independent and adequate state procedural ground,

Thornes did not exhaust his claim of ineffective assistance of appellate

counsel. See Rogers v. Sec’y, Dep’t of Corr., 829 F. App’x 437, 444 (11th Cir.

2020)5 (stating Rule 9.141(d)(5) “is an independent and adequate state

procedural ground that is firmly established and regularly followed”). Any

future attempts to exhaust the claim would be futile; therefore, it is

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

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

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

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

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

authority.”).

15

procedurally defaulted. As such, the ineffective assistance of Thornes’s

appellate counsel does not provide cause to excuse his procedural default of

the claim in Ground One.

Nevertheless, even if Thornes properly exhausted the claim, he is still

not entitled to relief because sufficient evidence supported his convictions for

aggravated assault and possession of a firearm by a convicted felon. The Due

Process Clause of the Fourteenth Amendment requires the State to prove

each element of the offense charged beyond a reasonable doubt. Thompson v.

Nagle, 118 F.3d 1442, 1448 (11th Cir. 1997) (citing Jackson v. Virginia, 443

U.S. 307, 314 (1979)). In reviewing the sufficiency of evidence, “this court

must presume that conflicting inferences to be drawn from the evidence were

resolved by the jury in favor of the State.” Thompson, 118 F.3d at 1448 (citing

Machin v. Wainwright, 758 F.2d 1431, 1435 (11th Cir. 1985)). The relevant

question is whether any rational jury, after viewing the evidence in the light

most favorable to the prosecution, could have found the essential elements of

the charged offense beyond a reasonable doubt. Jackson, 443 U.S. at 319.

Viewing the evidence in the light most favorable to the prosecution, a

rational trier of fact could have found Thornes guilty of aggravated assault

and possession of a firearm by a convicted felon. As to aggravated assault,

16

Florida law required the State to demonstrate: (1) Thornes “intentionally and

unlawfully threatened, either by word or act, to do violence” to Cinee Tinsley;

(2) at the time, he “appeared to have the ability to carry out the threat;” (3)

Thornes’s action “created in the mind of . . . [Tinsley] a well-founded fear that

the violence was about to take place;” and (4) Thornes made the assault with

a deadly weapon. Doc. 16-1 at 63; Fla. Std. Jury Instr. (Crim.) 8.2. For the

charge of possession of a firearm by a convicted felon, the State had to prove

beyond a reasonable doubt that Thornes had been convicted of a felony, and

“[a]fter the conviction, [] Thornes knowingly owned, had in his care, custody,

possession, or control a firearm.” Doc. 16-1 at 81; Fla. Std. Jury Instr. (Crim.)

10.15.

During trial, Cinee Tinsley, Thornes’s friend, testified that on the

evening of April 17, 2013, Thornes picked her up in a van at her cousin’s

house. Doc. 16-1 at 418-19. According to Tinsley, she had a sexual

relationship with Thornes, and he became jealous when her cellphone

continued to ring. Id. at 413-14, 420. She asked Thornes to drive her back to

her cousin’s house, and while they were driving, Thornes became angry after

Tinsley rejected his advances. Id. at 422-23. Tinsley testified that Thornes

drove past her cousin’s house and eventually stopped in front of Herbert

17

Johnson’s house. Id. at 423-24. She stated Thornes appeared angry and told

her to leave the van. Id. at 424. After Tinsley exited, Thornes also left the van

and began walking towards her. Id. at 424-25. According to Tinsley, he said,

“[G]et the f*** back in the van, b****, get back in the van.” Id. Johnson, who

was sitting in his front yard, told Thornes to leave Tinsley alone. Id. at 429.

Tinsley testified Thornes walked to the van and said, “I’ve got something to

show you.” Id. at 429-30. Thornes returned with a gun. Id. at 431. As Tinsley

ran behind the house, she heard a pop and saw a light from the gun. Id. at

433-34. She noted Thornes appeared to point it towards the ground. Id. at

434. Tinsley testified that she was in fear for her life when he fired the gun.

Id. at 438. After law enforcement arrived at Johnson’s house, Tinsley saw

Thornes ride past the house in a gold Buick driven by Marvina Kirksey,

Thornes’s girlfriend. Id. at 436-37. She identified Thornes to law

enforcement, and they followed him. Id. at 437.

Johnson testified to a similar version of events. Id. at 474-79. He stated

that when he asked Thornes to leave, Thornes shot a gun into the ground. Id.

at 477. According to Johnson, he found a bullet in that location and gave it to

law enforcement. Id. at 480-81. Officer Steve Coleman confirmed that he

18

recovered a bullet from Johnson and observed a hole in the front yard. Id. at

537-38, 602.

Kirksey testified Thornes called her to pick him up at his brother’s

house on the evening of April 17th. Id. at 508-09. When she arrived, Thornes

was searching for his cellphone near his white van. Id. at 509-10. Kirksey

noticed that Thornes had her father’s gun in his back pocket. Id. at 510. She

grabbed the gun from him when he got into her vehicle, a tan Buick, and

placed it in a cooler bag between the seats. Id. at 509, 512-13. Thornes

ultimately directed her to drive by Johnson’s house. Id. at 514-15. Kirksey

testified that when law enforcement stopped the vehicle, they questioned

Thornes about the incident, and he stated, “[T]here was some Jerry Springer

BS.” Id. at 519-20. According to Kirksey, she allowed law enforcement to

search her vehicle, at which time they found her father’s gun. Id. at 521.

Officer Coleman testified he secured the gun when he conducted the traffic

stop of Kirksey’s vehicle. Id. at 607. Thornes told Officer Coleman that he did

not own the gun, but it was in his possession that evening. Id. at 608.

Florida Department of Law Enforcement (FDLE) DNA analyst Sukhan

Warf testified she found a mixture of touch DNA on the gun. Id. at 571. She

could not definitively include or exclude Thornes as a contributor to part of

19

the DNA mixture. Id. at 572. FDLE firearms analyst Pete Lardizabal

testified that the recovered bullet had a deformed nose and significant

damage to its sides. Id. at 593-94. Lardizabal noted that this damage was

consistent with someone firing the bullet into a soft granular medium such as

sand. Id. at 595. According to Lardizabal, the recovered gun was “a potential

candidate for having fired that particular bullet.” Id. Additionally, after the

jury returned a verdict on counts one and two, the trial court introduced the

parties’ stipulation that Thornes had a prior felony conviction. Id. at 784.

Considering the above, the State presented ample evidence at trial as

to each of the elements of aggravated assault and possession of a firearm by a

convicted felon. The jury was entitled to believe the testimony of the State

witnesses, and their accounts supported a conclusion that Thornes, a

convicted felon, unlawfully and intentionally threatened Tinsley with a

firearm such that she had a well-founded fear that violence was about to take

place. As such, the claim in Ground One does not have merit, and Thornes is

not entitled to federal habeas relief.

20

B. Ground Two

1. Subclaim A

In Subclaim A, Thornes alleges counsel was ineffective when she failed

to move to suppress bullet fragments “not properly listed within [the] police

chain of custody.” Second Amended Petition at 9. Thornes raised a

substantially similar claim as ground eight of his amended Rule 3.850

Motion. Doc. 16-1 at 1031. The postconviction court denied relief, stating in

pertinent part:

In Ground Eight of his motion, Defendant

argues that his attorneys were ineffective because

they failed to object to the State’s introduction of

bullet evidence in order to preserve the issue for

appellate review.

To whatever extent Defendant’s argument is

that his attorneys should have objected to the bullet’s

admission, there was no proper basis for such an

objection. Officer Hamilton testified that he recovered

the bullet from the crime scene. Officer Coleman

testified that he observed a hole in the ground at the

crime scene and that he and Officer Hamilton

recovered the bullet from the crime scene. And Mr.

Lardizabal testified that the Sheriff’s Office delivered

the bullet to the F[DL]E and that he analyzed the

bullet in his capacity as senior crime laboratory

analyst to the FDLE. Defense Counsel had no basis

to object to the admission of the bullet into evidence

and is not ineffective for failing to do so. See Whitted,

21

992 So. 2d at 353[6] (counsel is “not ineffective for

failing to file a motion sure to be denied.”).

Finally, Defendant may not argue that his

attorneys were ineffective because they failed to

preserve an issue for appellate review. As a matter of

law, a claim that a lawyer was ineffective for failing

to preserve an issue for appellate review fails to

satisfy the prejudice prong of Strickland. Strobridge

v. State, 1 So. 3d 1240, 1242-43 (Fla. 4th DCA 2009);

see also Carratelli v. State, 961 So. 2d 312, 323 (Fla.

2007) (“Accordingly, we hold that a defendant

alleging that counsel was ineffective for failing to

object or preserve a claim of reversible error in jury

selection must demonstrate prejudice at the trial, not

on appeal.[”]).

Because the record and the law conclusively

refute Ground Eight of Defendant’s motion, this

Court will deny Ground Eight in accordance with

Rule 3.850(f)(5).

Id. at 1080-81 (record citations omitted). The First DCA per curiam affirmed

the denial of relief without a written opinion. Doc. 16-2 at 426.

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

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

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

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

6 Whitted v. State, 992 So. 2d 352 (Fla. 4th DCA 2008).

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

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

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

22

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

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

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

the evidence presented in the state court proceedings. Therefore, Thornes is

not entitled to relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of this claim is

not entitled to deference, Thornes’s ineffectiveness claim is without merit

because the record supports the postconviction court’s conclusion. Counsel

was not deficient when she failed to raise a meritless argument. See Freeman

v. Att’y Gen., 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be

deficient for failing to raise a meritless claim. . . .”). As such, Thornes has

failed to carry his burden of showing that his counsel’s representation fell

outside that range of reasonably professional assistance. Even assuming

arguendo deficient performance by counsel, Thornes has not shown any

resulting prejudice. He has not shown that a reasonable probability exists

that the outcome of the case would have been different if counsel had moved

to suppress the bullet. Because he has shown neither deficient performance

nor resulting prejudice, the ineffectiveness claim is without merit.

Accordingly, Thornes is not entitled to federal habeas relief on Subclaim A.

23

2. Subclaim B

Next, Thornes contends counsel was ineffective when she failed to move

to suppress a .38 caliber revolver that the State submitted as evidence during

trial. Second Amended Petition at 10. Thornes raised a substantially similar

claim as ground one of his amended Rule 3.850 Motion. Doc. 16-1 at 1027-28.

The postconviction court denied relief, stating in pertinent part:

In Ground One of his motion, Defendant argues

that his attorneys were ineffective because they

failed to object to the admission of a .38 caliber

revolver at trial. Defendant says that the State

introduced the revolver as the weapon Defendant

used when committing his offenses. However,

Defendant maintains that Florida Department of

Law Enforcement (FDLE) test results revealed that

the revolver was unrelated to either Defendant or to

the bullet [that] investigators found at the crime

scene.

Defendant essentially argues that the revolver

admitted at trial was irrelevant because there was no

evidence connecting the revolver to Defendant and

that his attorneys were ineffective for not moving to

exclude the firearm on that basis. The trial transcript

refutes this claim. Ms. Cinee Tinsley testified that

she saw Defendant wield a gun at the crime scene

and that the gun offered as State’s Exhibit Two was

in fact that same gun. Ms. Marvina Kirskey,

Defendant’s girlfriend at the time of the crimes at

issue, testified that she saw Defendant possess her

father’s gun on the night of the crime and the State’s

Exhibit Two was her father’s gun. Officer B.R.

Hamilton of the Jacksonville Sheriff’s Office (JSO)

24

testified that he and Officer Steven Coleman

discovered the gun during a search of the vehicle in

which Defendant was a passenger on the night of the

crimes at issue. Officer Coleman corroborated Officer

Hamilton’s testimony concerning their discovery of

Defendant’s gun. And Officer Coleman testified that,

when questioning Defendant on the night of the

crimes in this case, Defendant admitted to possessing

the gun. While it is true that the FDLE DNA tests of

the firearm yielded inconclusive results, this fact

speaks to the weight, not the admissibility, of the

evidence. FDLE Crime Laboratory Analyst Suhkan

Warf testified that she could not definitively say

whether Defendant had made contact with the

weapon based on touch DNA analysis. However, she

also testified that, in her experience, only six percent

of touch DNA analyses yield conclusive results. On

these facts, Defendant cannot persuasively argue

that there was any basis for his attorneys to ask the

trial court to exclude the revolver from evidence. As

such, Defendant’s attorneys were not deficient and

Defendant cannot satisfy his burden under

Strickland. See Whitted v. State, 992 So. 2d 352, 353

(Fla. 4th DCA 2008) (counsel is “not ineffective for

failing to file a motion sure to be denied.”).

Because the record conclusively refutes Ground

One of Defendant’s motion, this Court will deny

Ground One in accordance with Rule 3.850(f)(5).

Id. at 1072-73 (record citations omitted). The First DCA per curiam affirmed

the denial of relief without a written opinion. Doc. 16-2 at 426.

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

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

25

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

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

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

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

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

the evidence presented in the state court proceedings. Therefore, Thornes is

not entitled to relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of this claim is

not entitled to deference, Thornes’s ineffectiveness claim is without merit

because the record supports the postconviction court’s conclusion. Under

Florida law, “[r]elevant evidence is evidence tending to prove or disprove a

material fact.” Fla. Stat. § 90.401. All relevant evidence is admissible, except

where its probative value is substantially outweighed by the danger of unfair

prejudice. Fla. Stat. §§ 90.402, 90.403. “[I]n order for evidence of a firearm to

be admissible as relevant in a criminal trial, the state must show a sufficient

link between the weapon and the crime.” Metayer v. State, 89 So. 3d 1003,

1007 (Fla. 4th DCA 2012).

Here, the State sufficiently linked the revolver to the offenses. Both

Tinsley and Johnson testified Thornes used a firearm during the incident.

26

Doc. 16-1 at 431, 477. Tinsley identified the revolver in evidence as the

firearm that Thornes shot into the ground. Id. at 432. Kirksey testified that

she saw Thornes with her father’s revolver that evening. Id. at 510. When

Thornes entered her vehicle, she took the revolver from him and placed it

inside a soft cooler. Id. at 512-13. Kirksey also identified the revolver in

evidence as her father’s revolver. Id. at 512. Officer Coleman testified that he

recovered the revolver from Kirksey’s vehicle, and Thornes admitted that he

possessed the revolver that evening. Id. at 607-08. Based on this evidence,

the State established that the revolver was relevant to the charges as being

the firearm that Thornes used during the offenses. Any objection to its

admission on the basis of relevancy would have been meritless. As such,

counsel was not deficient when she failed to raise a meritless argument. See

Freeman, 536 F.3d at 1233.

Even assuming arguendo counsel performed deficiently, Thornes has

not shown any resulting prejudice. He has not shown that a reasonable

probability exists that the outcome of the case would have been different if

counsel had moved to suppress the revolver. Because he has shown neither

deficient performance nor resulting prejudice, the ineffectiveness claim is

27

without merit. Therefore, Thornes is not entitled to federal habeas relief on

Subclaim B.

3. Subclaim C

In Subclaim C, Thornes alleges counsel was ineffective when she failed

to move to suppress bullet fragments that law enforcement recovered from a

vehicle not registered to him. Second Amended Petition at 10. The record

demonstrates Thornes did not present a similar claim to the state court.

Docs. 16-1 at 800-13, 1025-40; 16-2 at 479-87. Because he did not complete

the state court process, the claim is not exhausted. See O’Sullivan, 526 U.S.

at 845. Because any future attempt to exhaust this claim would be futile, it is

procedurally defaulted.

In an effort to avoid the bar, Thornes cites Martinez v. Ryan, 566 U.S. 1

(2012), and argues that his lack of postconviction counsel constitutes cause

and prejudice to overcome the procedural bar. Reply at 6. The Eleventh

Circuit has explained the holding of Martinez as follows:

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

narrow exception to the general rule that the lack of

an attorney or attorney error in state post-conviction

proceedings does not establish cause to excuse the

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

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

Court, however, set strict parameters on the

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

28

state law requires a prisoner to raise ineffective-trial-

counsel claims during an initial collateral proceeding

and precludes those claims during direct appeal; (2)

the prisoner failed to properly raise ineffective-trial-

counsel claims during the initial collateral

proceeding; (3) the prisoner either did not have

counsel or his counsel was ineffective during those

initial state collateral proceedings; and (4) failing to

excuse the prisoner’s procedural default would result

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

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

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

forth the Martinez requirements).

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

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

Martinez, 566 U.S. at 14.

Considering the record, the Court determines Thornes has not shown

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

enforcement never recovered bullet fragments from Kirksey’s vehicle. Doc.

16-1 at 532-46, 599-610. Instead, Johnson discovered the bullet in his front

yard, id. at 481, and he gave it to law enforcement, id. Therefore, an objection

on the basis proposed by Thornes would not have merit. Counsel was not

deficient when she failed to make a meritless objection. See Freeman, 536

F.3d at 1233. For the same reason, Thornes has not shown any resulting

prejudice. Because he has shown neither deficient performance nor prejudice,

29

the Court finds that Thornes’s claim is not substantial such that his failure to

exhaust it should be excused under Martinez. Accordingly, he is not entitled

to federal habeas relief on Subclaim C.

4. Subclaim D

As Subclaim D, Thornes argues counsel was ineffective when she failed

to move to suppress a “photo display” of the location where the incident

occurred. Second Amended Petition at 10. Thornes did not present a similar

claim on direct appeal, in his state petition, or in his amended Rule 3.850

Motion. Docs. 16-1 at 800-13, 1025-40; 16-2 at 479-87. Because he did not

complete the state court process, the claim is not exhausted, see O’Sullivan,

526 U.S. at 845, and any future attempt to exhaust this claim would be futile,

it is procedurally defaulted. To avoid the bar, Thornes again cites Martinez

and argues that his lack of postconviction counsel constitutes cause and

prejudice to overcome the procedural bar. Reply at 6.

Based on the record, Thornes fails to demonstrate that his underlying

ineffective assistance of counsel claim is substantial. “The test for the

admissibility of photographic evidence is relevance. . . .” McWatters v. State,

36 So. 3d 613, 636 (Fla. 2010). Although Thornes fails to specify which “photo

display” counsel should have moved to suppress, he appears to refer to State’s

30

Exhibits 1A and 1C, photographs of Johnson’s house. Doc. 16-1 at 83, 426-27.

Tinsley used these photographs to illustrate her, Thornes, and Johnson’s

locations during the incident. Id. at 427-28. As used by the State, the

photographs were relevant because they depicted the location where the

offenses took place. Therefore, counsel was not deficient when she failed to

submit a meritless motion to suppress the photographs. See Freeman, 536

F.3d at 1233. Because Thornes has not shown deficient performance, the

Court finds that Thornes’s claim is not substantial such that his failure to

exhaust it should be excused under Martinez. Accordingly, Thornes is not

entitled to federal habeas relief on Subclaim D.

5. Subclaim E

Thornes also contends counsel was ineffective when she failed to

subpoena evidence technician Stephanie Grimes. Second Amended Petition at

10. He maintains Grimes would have disclosed exculpatory evidence. Id.

Thornes raised a substantially similar claim as ground five of his amended

Rule 3.850 Motion. Doc. 16-1 at 1030. The postconviction court denied relief,

stating in pertinent part:

In Ground Five of his motion, Defendant

argues that his attorneys were ineffective when they

decided to not call evidence technician Stephanie

Grimes as a witness at trial. Defendant speculates

31

that Ms. Grimes could have provided testimony that

there was no physical evidence of a bullet hole in the

ground at the crime scene.

The trial court asked Defendant whether he

agreed with his attorneys’ decision to not call any

witnesses during Defendant’s case in chief.

Defendant affirmed under oath that he agreed with

that decision. “[C]ounsel is not ineffective for

following [her] client’s wishes.” Dennis v. State, 109

So. 3d at 691;[8] see also Kelley, 109 So. 3d at 812-

13[9] (“A rule 3.850 motion cannot be used to go

behind representations the defendant made to the

trial court, and the court may summarily deny post-

conviction claims that are refuted by such

representations.”).

Because the record and the law conclusively

refute Ground Five of Defendant’s motion, this Court

will deny Ground Five in accordance with Rule

3.850(f)(5).

Id. at 1077-78 (record citation omitted). The First DCA per curiam affirmed

the denial of relief without a written opinion. Doc. 16-2 at 426.

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

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

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

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

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

8 Dennis v. State, 109 So. 3d 680 (Fla. 2012).

9 Kelley v. State, 109 So. 3d 811 (Fla. 1st DCA 2013).

32

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

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

the evidence presented in the state court proceedings. Therefore, Thornes is

not entitled to relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of this claim is

not entitled to deference, it is without merit. Thornes’s claim that Grimes

would have testified about the absence of a bullet hole in the ground at

Johnson’s house is entirely speculative. Indeed, he has not supported the

claim with any substantive evidence at all. Notably, the evidence presented

at trial refutes his claim. Officers Hamilton and Coleman both testified that

they observed the area in the ground where Johnson recovered the bullet.

Doc. 16-1 at 538, 602. Speculation about potentially favorable evidence and

its potential impact on the jury’s ultimate determination cannot form the

basis of an ineffective assistance of counsel claim. See Johnson v. Alabama,

256 F.3d 1156, 1187 (11th Cir. 2001) (finding petitioner’s speculation that

witnesses’ testimony would have been helpful was “‘insufficient to carry the

burden of a habeas corpus petitioner’”) (citation omitted). As such, Thornes

has failed to carry his burden of showing that his counsel’s representation fell

33

outside that range of reasonably professional assistance, and he is not

entitled to federal habeas relief on the claim in Subclaim E.

6. Subclaim F

As Subclaim F, Thornes alleges counsel was ineffective when she failed

to exclude testimony from Tinsley and Officer Coleman. Second Amended

Petition at 10. According to Thornes, counsel should have excluded Tinsley’s

testimony that she saw Thornes with a gun and Officer Coleman’s testimony

that he administered Miranda10 warning rights to Thornes. Id. Thornes did

not present a similar claim to the state court. Docs. 16-1 at 800-13, 1025-40;

16-2 at 479-87. Therefore, he did not complete the state court process, and

the claim is not exhausted. See O’Sullivan, 526 U.S. at 845. Because any

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

defaulted.

Thornes argues that under Martinez, his lack of postconviction counsel

constitutes cause and prejudice to overcome the procedural bar. Reply at 6.

However, he has failed to demonstrate that his underlying ineffective

assistance of counsel claim is substantial. Tinsley and Officer Coleman

testified to matters within their personal knowledge and relevant to the

10 Miranda v. Arizona, 384 U.S. 436 (1966).

34

offenses. Doc. 16-1 at 411-38, 599-610. As such, the trial court would have

denied any motion to exclude their testimony. Counsel was not deficient

when she failed to make a meritless motion. See Freeman, 536 F.3d at 1233.

Because Thornes has not shown deficient performance, the Court finds that

the claim is not substantial such that his failure to exhaust it should be

excused under Martinez. As such, Thornes is not entitled to federal habeas

relief on Subclaim F.

7. Subclaim G

Next, Thornes contends counsel was ineffective when she failed to

argue that no physical evidence demonstrated Thornes assaulted the victim.

Second Amended Petition at 10. Thornes did not present a similar claim to

the state court. Docs. 16-1 at 800-13, 1025-40; 16-2 at 479-87. Therefore, this

claim is not exhausted, like his others, because Thornes failed to complete the

state court process, see O’Sullivan, 526 U.S. at 845, and any future attempt

to do so would be futile. Thus, the claim is procedurally defaulted. Thornes

once again attempts to avoid the procedural bar by relying on Martinez and

his lack of postconviction counsel to establish cause and prejudice. Reply at 6.

However, his attempt to do so fails.

35

The record before the Court does not support a finding that Thornes

has demonstrated that his underlying ineffective assistance of counsel claim

is substantial; rather, the record refutes it. During closing arguments,

counsel referenced the lack of physical evidence in her argument that the

jury should find Thornes not guilty of the offenses:

Now, why should you find a verdict of not

guilty? First and foremost, there’s absolutely no

physical evidence. There’s nothing. There’s no DNA

that is conclusive. Fingerprints weren’t even taken.

We didn’t hear anything about anybody being tested

for gunshot residue, either on hands or clothing or

anything like that. We heard a bunch about cell

phones. No cell phone was recovered or taken into

evidence. We heard something about Mr. Johnson,

who was in the yard, using some type of tool. We

never saw a picture of that. That wasn’t taken into

evidence. That hasn’t been brought before you today

to observe that. We saw a couple of photos of the

house. We didn’t see a photo of this alleged hole in

the ground.

So that’s physical evidence that we didn’t see at

all; we didn’t hear about. . . .

Doc. 16-1 at 668-69 (emphasis added). Counsel was not deficient when she

made the argument that Thornes claims she should have. As such, Thornes

does not raise a substantial claim such that his failure to exhaust it should be

excused under Martinez. Accordingly, he is not entitled to federal habeas

relief on the claim in Subclaim G.

36

C. Ground Three

As Ground Three, Thornes asserts appellate counsel was ineffective

when she failed to raise on direct appeal the sufficiency of evidence to support

the convictions and the denial of Thornes’s right to a fair trial. Second

Amended Petition at 12. According to Thornes, he was denied a fair trial

because he could not confront evidence technician Grimes. Id. Thornes also

maintains that appellate counsel failed to review the record on appeal and

did not investigate “any material issues of fact.” Id. at 11.

Thornes raised a substantially similar claim as the sole ground of his

state petition. Doc. 16-2 at 479-87. The First DCA dismissed the state

petition as untimely filed under Rule 9.141(d)(5). Id. at 491. Because the

First DCA relied on an independent and adequate state procedural ground,

Thornes did not exhaust his claim of ineffective assistance of appellate

counsel. See Rogers, 829 F. App’x at 444. Any future attempts to exhaust the

claim would be futile; therefore, it too is procedurally defaulted. And, as with

his other claims, Thornes has failed to demonstrate either cause or prejudice

to excuse his lack of exhaustion, and also has failed to demonstrate that a

fundamental miscarriage of justice has occurred. As such, the claims in

Ground Three are due to be denied as procedurally barred.

37

Nevertheless, even assuming Thornes properly exhausted the claims,

he would not be entitled to relief. If Thornes alleges appellate counsel should

have raised the claim that he was denied a fair trial because he could not

confront evidence technician Grimes, his ineffectiveness claim does not have

merit. He fails to identify any testimonial statements admitted by the State

about which he could not confront Grimes. See Crawford v. Washington, 541

U.S. 36, 68 (2004) (holding a defendant’s Sixth Amendment right to

confrontation forbids the government from admitting the testimonial

statement of a witness who does not appear at trial unless the witness is

unavailable to testify, and the defendant had a prior opportunity for cross-

examination). Further, Thornes had the opportunity to cross-examine the

State’s witnesses and present evidence in his defense. Without more, his

speculative and conclusory allegation that he did not receive a fair trial does

not demonstrate his entitlement to federal habeas relief.

To the extent Thornes argues appellate counsel was ineffective when

she failed to contest the sufficiency of evidence supporting his convictions, the

claim also is without merit. Viewing the evidence as detailed in Ground One

“in the light most favorable to the State, a rational trier of fact readily could

have found the existence of the elements of the crime[s] beyond a reasonable

38

doubt.” Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001). As such, Thornes

cannot demonstrate prejudice because the omitted claim would not have a

reasonable probability of success on appeal. Philmore, 575 F.3d at 1265.

Accordingly, Thornes is not entitled to federal habeas relief on the claims in

Ground Three.

D. Ground Four

Lastly, Thornes argues that he did not have the availability of “an

adequate state corrective process” in violation of § 2254(b)(1)(B). Second

Amended Petition at 14. According to Thornes, the First DCA refused to

review the sufficiency of evidence in his case. Id. He also contends that no

evidence demonstrates the trial court and the First DCA reviewed his case on

the merits. Id. at 15. Thornes argues he is actually innocent of the offenses

“with no available recourse in state court.” Id.

§ 2254(b)(1)(B) provides that a petitioner must exhaust state court

remedies unless “there is an absence of available State corrective process” or

“circumstances exist that render such process ineffective to protect the rights

of the applicant.” § 2254(b)(1)(B)(i)-(ii). To the extent Thornes asserts as an

independent claim the unavailability of an adequate state corrective process,

he does not present a cognizable claim for relief. If he contends that he could

39

not exhaust his state court remedies on this basis, his conclusory assertions

are insufficient to show the absence of a state corrective process. Notably, his

sufficiency of the evidence claims are cognizable on direct appeal pursuant to

Florida law. See Clift v. State, 43 So. 3d 778, 778 (Fla. 1st DCA 2010) (“[T]the

claim of insufficient evidence to sustain a conviction is an issue that could

have and should have been raised on direct appeal.”). But, Thornes pursued a

direct appeal yet failed to raise any such issue. Accordingly, he is not entitled

to relief on this claim.11

Additionally, the Eleventh Circuit has stated in regards to actual

innocence claims:

To begin with, our precedent forecloses habeas relief

based on a prisoner’s assertion that he is actually

innocent of the crime of conviction “absent an

independent constitutional violation occurring in the

underlying state criminal proceeding.” See Brownlee

v. Haley, 306 F.3d 1043, 1065 (11th Cir. 2002)

(citation and internal quotation marks omitted); see

also Cunningham v. Dist. Att’y’s Office, 592 F.3d

1237, 1273 (11th Cir. 2010) (“[An] assertion of actual

innocence, by itself, is not enough.”); Jordan v. Sec’y,

Dep’t of Corr., 485 F.3d 1351, 1356 (11th Cir. 2007).

As we have explained, “[i]t is not our role to make an

independent determination of a petitioner’s guilt or

11 The Court also recognizes that Florida appellate courts have reiterated per

curiam affirmances without opinion are “not an indication that the case was not

considered on the merits.” Crittenden v. State, 67 So. 3d 1184, 1185 n.1 (Fla. 5th

DCA 2011).

40

innocence based on evidence that has emerged since

the trial.” Brownlee, 306 F.3d at 1065. And the

Supreme Court has never held that a prisoner is

“entitled to habeas relief based on a freestanding

claim of actual innocence.” McQuiggin v. Perkins, 569

U.S. 383, 392, 133 S.Ct. 1924, 185 L.Ed.2d 1019

(2013).

The prohibition on freestanding claims of

actual innocence in a habeas petition respects the

nature of our federal system: “Federal courts are not

forums in which to relitigate state trials.” Herrera v.

Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 122 L.Ed.2d

203 (1993) (quoting Barefoot v. Estelle, 463 U.S. 880,

887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). When

reviewing a habeas petition, we “sit to ensure that

individuals are not imprisoned in violation of the

Constitution— not to correct errors of fact.” Id. at

400, 113 S.Ct. 853. And “[f]ew rulings would be more

disruptive of our federal system than to provide for

federal habeas review of freestanding claims of actual

innocence.” Id. at 401, 113 S.Ct. 853.

Raulerson v. Warden, 928 F.3d 987, 1004 (11th Cir. 2019). Here, to the extent

Thornes asserts actual innocence, such a claim is not cognizable on federal

habeas review. Accordingly, he is not entitled to federal habeas relief on the

claims in Ground Four.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Thornes seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. The

41

Court should issue a certificate of appealability only if the petitioner makes

“a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, Thornes “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)).

Where a district court has rejected a petitioner’s constitutional claims

on the merits, the petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong. See Slack, 529 U.S. at 484. However, when the district court has

rejected a claim on procedural grounds, the petitioner must show that “jurists

of reason would find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.

Upon consideration of the record as a whole, the Court will deny a certificate

of appealability.

42

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Second Amended Petition (Doc. 11) is DENIED, and this

action is DISMISSED WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Second

Amended Petition and dismissing this case with prejudice.

3. If Thornes appeals the denial of the Second Amended Petition,

the Court denies a certificate of appealability. Because the Court has

determined that a certificate of appealability is not warranted, the Clerk

shall terminate from the pending motions report any motion to proceed on

appeal as a pauper that may be filed in this case. Such termination shall

serve as a denial of the motion.

4, The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 9th day of

June, 20238.

United States District Judge

43

Jax-9 5/1

c: Chris Leonard Thornes, #288776

Counsel of record

44

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