“[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