Moultrie v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

EDDIE JAMES MOULTRIE,

Petitioner,

v. Case No. 3:20-cv-812-MMH-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Eddie James Moultrie, an inmate of the Florida penal system,

initiated this action on July 20, 2020,1 by filing a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 In the Petition, Moultrie

challenges a 2015 state court (Duval County, Florida) judgment of conviction

for armed burglary, aggravated battery with a deadly weapon, and resisting

an officer without violence. He raises four grounds for relief. See Petition at 5-

10. Respondents submitted a memorandum in opposition to the Petition. See

Response (Doc. 9). They also submitted exhibits. See Doc. Nos. 7-1 ─ 7-19.

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.

Moultrie filed a brief in reply and an exhibit. See Reply (Doc. Nos. 8, 8-1). This

action is ripe for review.

II. Relevant Procedural History

On September 5, 2013, the State of Florida charged Moultrie by

information with armed burglary (count one), aggravated battery with a deadly

weapon (count two), battery (count three), and resisting an officer without

violence (count four). Doc. 7-1 at 35-36. At the conclusion of a trial, on January

15, 2015, the jury found Moultrie guilty of counts one, two, and four and not

guilty of count three. Id. at 128-33. On March 13, 2015, the trial court

sentenced Moultrie to a term of imprisonment of fifteen years. Id. at 175-83.

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

brief in which he argued that Moultrie did not commit burglary under Florida

law because he only entered the victim’s private bedroom in the rooming house

where Moultrie lived (ground one) and the trial court did not perform an

adequate Faretta3 inquiry upon learning that Moultrie suffered from vision

issues (ground two). Doc. 7-4 at 1-39. The State filed an answer brief. Doc. 7-5

at 1-27. Moultrie filed a reply brief. Doc. 7-6 at 1-22. Florida’s First District

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

3 Faretta v. California, 422 U.S. 806, 807 (1975).

2

sentence without a written opinion on June 15, 2016, Doc. 7-7 at 4, and issued

the mandate on August 10, 2016, id. at 3.

On September 4, 2016, Moultrie filed a pro se motion for postconviction

relief pursuant to Florida Rule of Criminal Procedure 3.850. Doc. 7-9 at 6-17

(Rule 3.850 Motion). In his Rule 3.850 Motion, Moultrie alleged counsel was

ineffective for failing to move for a new trial based on juror misconduct (ground

one), the State failed to disclose exculpatory DNA evidence and the crime scene

technician’s deposition in violation of Brady4 (ground two), counsel was

ineffective for failing to obtain a competency evaluation (ground three), and

counsel was ineffective for waiving Moultrie’s right to speedy trial against his

wishes (ground four). Id. The postconviction court determined that grounds two

and three were insufficiently pled and granted Moultrie leave to amend. Id. at

64-66. On February 1, 2018, Moultrie filed an amended motion for

postconviction relief in which he amended the claim in ground two and

abandoned the claim in ground three. Doc. 7-10 at 5-7 (Amended Motion). The

postconviction court denied Moultrie’s Rule 3.850 Motion and his Amended

Motion for postconviction relief. Doc. 7-9 at 289-99. The First DCA per curiam

4 Brady v. Maryland, 373 U.S. 83 (1963).

3

affirmed the denial of relief without a written opinion on June 17, 2020, Doc.

7-13 at 3, and issued the mandate on August 18, 2020, id. at 2.

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 474.

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

Court. Because the Court can “adequately assess [Moultrie’s] claim[s] without

4

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 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,

5

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); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

6

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

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 --

7

-, 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).

B. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

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

8

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 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

9

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.

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,” then a federal court may not

10

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).

C. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a §

2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

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

11

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

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

12

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[5] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[6] supra, at 84–85, 97 S.

Ct. 2497. A state court’s invocation of a procedural

rule to deny a prisoner’s claims precludes federal

review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate

to support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally defaulted

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may

be excused under certain circumstances. Notwithstanding that a claim has

been procedurally defaulted, a federal court may still consider the claim if a

state habeas petitioner can show either (1) cause for and actual prejudice from

the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). For a petitioner to establish cause,

5 Coleman v. Thompson, 501 U.S. 722 (1991).

6 Wainwright v. Sykes, 433 U.S. 72 (1977).

13

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[7]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice,

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

7 Murray v. Carrier, 477 U.S. 478 (1986).

14

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

VI. Findings of Fact and Conclusions of Law

A. Ground One

In Ground One, Moultrie asserts he was denied his constitutional right

to a speedy trial. Petition at 5. Specifically, Moultrie complains that the trial

court allowed his defense counsel to waive his right to speedy trial after he

expressed his desire for a speedy trial and he suffered prejudice because the

evidence technician, Moultrie’s only witness, died before he was brought to

trial. Id. In his Reply, Moultrie further contends that counsel rendered

15

ineffective assistance by waiving his constitutional and statutory rights to a

speedy trial. Reply at 12-16.

As Respondents correctly note, see Doc. 7 at 21-23, Moultrie did not raise

the claim that he was denied his constitutional right to a speedy trial on direct

appeal as required by Florida law. Rather, in his Rule 3.850 Motion Moultrie

alleged that counsel rendered ineffective assistance by waiving his state law

right to speedy trial. Doc. 7-9 at 55-56. Moreover, Moultrie did not argue that

he was prejudiced by the waiver because the crime scene technician died. Id.

Thus, the substantive speedy trial claim raised in Ground One is unexhausted

and barred from review absent the applicability of an exception to the

procedural default bar.

To overcome his procedural default of the substantive violation of his

constitutional right to speedy trial claim, Moultrie contends that appellate

counsel failed to raise the issue on direct appeal from his conviction. Reply at

8. Notably, in his state habeas petition Moultrie alleged that appellate counsel

was ineffective for failing to argue that he was denied his constitutional right

to a speedy trial. Doc. 7-15 at 4-6. The First DCA summarily denied the claim

on the merits. Doc. 7-16 at 2.

16

A claim of ineffective assistance of counsel may support a finding of cause

if it was raised in the state courts as an independent claim. See Murray v.

Carrier, 477 U.S. 478, 489 (1986). However, “[f]or a claim of ineffective

assistance of counsel to serve as cause to overcome a procedural bar, the claim

of ineffectiveness must be meritorious.” Thompson v. Sec’y for Dep’t of Corr.,

517 F.3d 1279, 1282 (11th Cir. 2008). The Court, therefore, will consider

whether Moultrie’s ineffective assistance of appellate counsel claim is

meritorious.

To determine whether an individual’s constitutional right to a speedy

trial was violated, courts consider four factors as being “particularly relevant:

[the] (1) length of delay, (2) reasons for the delay, (3) [ ] defendant’s assertion

of the speedy trial rights and (4) prejudice to the defendant.” Glidewell v.

Burden, 822 F.2d 1027, 1029 (11th Cir. 1987) (citing Barker v. Wingo, 407 U.S.

514, 530 (1972)). “None of the individual factors is ‘either a necessary or a

sufficient condition to [a] finding of a deprivation of the right to a speedy trial.’”

Id. (quoting Barker, 407 U.S. at 530). Instead, a court must consider all

relevant circumstances in a “sensitive balancing process.” Id.

In Florida, Rule 3.191 governs a defendant’s right to speedy trial.

Pursuant to Rule 3.191(a), the state shall bring a defendant charged with a

17

felony to trial within 175 days. “This right is not self-executing and requires a

defendant to take affirmative action to avail himself of the remedies provided

under the statute.” Dillard v. Sec’y Dep’t of Corr., 440 F. App’x 817, 819 (11th

Cir. 2011) (citing State v. Nelson, 26 So. 3d 570, 574 (Fla. 2010)). As such, “to

claim a violation of speedy trial rights, a defendant must move for a discharge”

before trial or he is precluded from raising the issue on direct appeal. State v.

Riechmann, 777 So. 2d 342, 365 (Fla. 2000). Notably, “[under Florida law,] a

waiver of speedy trial by counsel is binding on the defendant, ‘even though

done without consulting him and even against the client’s wishes.’” Dillard,

440 F. App’x at 820 (quoting State v. Kruger, 615 So. 2d 757, 759 (Fla. 4th DCA

1993)); see also New York v. Hill, 528 U.S. 110, 115 (2000) (holding that defense

counsel could waive defendant’s right to be brought to trial within the 180-day

period specified under the Interstate Agreement on Detainers, by agreeing to

a trial date outside that period, even without the express consent of defendant).

Here, Moultrie did not move for a discharge based on a speedy trial

violation before trial nor did he raise his constitutional right to speedy trial.

Appellate counsel, therefore, was not deficient for failing to argue that

Moultrie’s right to speedy trial was violated, and Moultrie’s claim is not

meritorious. See id. (concluding appellate counsel was not ineffective for failing

18

to raise speedy trial issue where it was not preserved in the trial court).

Moreover, Moultrie has not established that his constitutional right to a

speedy trial was violated; therefore, he has not shown he was prejudiced by

appellate counsel’s failure to raise the issue on direct appeal. There was an

approximate sixteen-month delay from the filing of the information and

Moultrie’s trial. Moultrie advised the trial court in April 2014 that he did not

wish to waive his statutory right to speedy trial. Nevertheless, his attorney

chose to waive speedy trial because she needed to take additional depositions

and because Moultrie had given her additional information that he wanted her

to investigate. Doc. 7-9 at 488. From counsel’s representations, legitimate

reasons existed for counsel to waive speedy trial.

Moultrie also has not shown he was prejudiced by the delay in his trial

as a result of trial counsel’s waiver. He complains that because of the delay his

only witness, the evidence technician, died before trial. Moultrie, however, has

not shown how the evidence technician’s testimony would have assisted the

defense. The State, without objection, admitted into evidence the photographs

taken by the evidence technician at the scene of the burglary and the

19

cinderblock that Moultrie threw at the victim.8 See Doc. Nos. 7-1 at 214, 7-2 at

19, 134. The victim testified that the photographs accurately depicted the home

at the time of the burglary. Doc. 7-2 at 123. Moultrie fails to explain what

testimony the evidence technician could have provided that would have refuted

the evidence presented at trial, which included the victim’s testimony that

Moultrie came into his bedroom while the victim was sleeping, hit him in the

face with a cinderblock, and engaged in a fight with the victim, choking him

with a stool. Considering the Barker factors, the Court concludes that Moultrie

has not shown a violation of the Sixth Amendment right to speedy trial. Thus,

Moultrie has not established that he has a meritorious claim that appellate

counsel was ineffective to overcome the procedural default of his substantive

constitutional speedy trial claim.

To the extent Moultrie contends counsel was ineffective for waiving his

statutory and constitutional rights to speedy trial, he raised a substantially

similar claim in his Rule 3.850 Motion. Doc. 7-9 at 13-15. In denying relief, the

postconviction court stated in pertinent part:

Moving to continue a trial waives a defendant’s

speedy trial rights, and counsel may waive speedy trial

8 In fact, Moultrie requested the State to introduce the cinderblock into

evidence. Doc. 7-2 at 291-93.

20

over a client’s objections. Randall v. State, 938 So. 2d

542, 544 (Fla. 1st DCA 2006). Accordingly, “if the right

to speedy trial may be waived without consulting the

defendant, counsels’ waiver here cannot be considered

an error, let alone one that is ‘so serious that “counsel”

was not functioning as the counsel guaranteed the

defendant by the Sixth Amendment’”. McKenzie v.

State, 153 So. 3d 867, 875 (Fla. 2014) (citing

Strickland, 466 U.S. at 687); see also Ford v. State, 955

So. 2d 550, 555 (Fla. 2007) (finding counsel’s waiver

was based upon reasonable trial strategy and

therefore did not constitute deficient performance.)

Counsel did not act outside the wide range of

reasonable professional assistance in waiving

Defendant’s right to speedy trial over his objection.

Instead, the record refutes Defendant’s a1lesgation

and illustrates that counsel waived Defendant’s right

to speedy trial in order to adequately prepare

Defendant’s case because, although she had completed

the majority of discovery in the case, there were

additional depositions to complete and Defendant had

provided her information that same day and requested

she look into it. Further, counsel stated that she

attempted to speak with Defendant the day prior and

he refused and as a result, she did not feel comfortable

demanding speedy trial but would leave the decision

of whether or not to put Defendant’s case on the trial

calendar up to this Court. On the day that Defendant

began to represent himself, December 2, 2014, he

invoked his right to speedy trial upon demand,

pursuant to Florida Rule of Criminal Procedure

3.191(b). Jury selection began on January 12, 2015.

Therefore, the requirements of the Rule were complied

with. Defendant’s fourth ground is without merit.

Id. at 298 (record citations omitted). The First DCA per curiam affirmed the

21

denial of relief without a written opinion. Doc. 7-13 at 3.

To the extent that the First DCA decided the claim on the merits,9 the

Court addresses the claim in accordance with the deferential standard for

federal court review of state court adjudications. As previously noted, under

Florida law, “an attorney may waive speedy trial without consulting the client

and even against the client’s wishes.” McKenzie v. State, 153 So. 3d 867, 875

(Fla. 2014), on reh’g (Dec. 11, 2014) (citing McKenzie v. State, 29 So. 3d 272,

282 (Fla. 2010)). Further, as discussed above, Moultrie has not shown that

prejudice resulted from counsel’s waiver of speedy trial. 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. Accordingly, Moultrie is not

entitled to federal habeas relief on the claim in Ground One.

9 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

B. Ground Two

In Ground Two, Moultrie maintains that his constitutional rights were

violated by the prosecution’s failure to provide him with a copy of the evidence

technician’s deposition. Petition at 7. According to Moultrie, the prosecutor’s

failure to give him the deposition deprived him “of his only defense strategy

and material witness who possessed the ability to bring critical insight . . .

regarding the facts of the case.” Id.

Moultrie raised a substantially similar claim in his Amended Rule 3.850

Motion. Doc. 7-10 at 6-7. In denying relief, the postconviction court stated in

pertinent part:

In its Order Granting Defendant Leave to

Amend, this Court found, as to the evidence

technician’s deposition, that Defendant failed to

provide “detail or specific grounds upon how the

evidence was favorable and qualifies as Brady

evidence.” Defendant alleges in his Amended Motion

that when he learned the evidence technician had been

deposed and was expected to testify at trial, he

informed this Court he had no knowledge of the

deposition, and asked for a copy. He alleges the State

agreed to provide a copy, but never did. He asserts he

was deprived of due process by the State’s “failure to

preserve and disclose evidence, that may be expected

to play a significant role in a proceeding.” Defendant

alleges he was prejudiced in his trial preparation by

not having the deposition transcript, because the

evidence technician’s testimony was “crucial in any

case especially to Defendant’s.” He asserts that he

23

would have read the deposition into evidence as

perpetuated testimony “because a [sic] substantive

‘evidence it was [sic] revealed facts opposed to the

credibility of the victim.” Getting to the crux of the

insufficiency noted in this Court’s Order Granting

Leave to Amend, Defendant asserts that “the

[d]eposition contained possible favorable evidence

which was relevant and material to the Defendant[’‘s]

trial preparation and if disclosed would [have]

reasonably put the case in such a different light as to

undermine confidence in the verdict.”

Because the evidence technician did not testify

for the State, lack of the deposition transcript did not

prejudice Defendant by depriving him of an

opportunity to impeach a witness. Moreover,

Defendant’s Amended Motion suffers the same

infirmity as the original Motion: Defendant’s

admission that the presence of favorable evidence in

the deposition was only a possibility underscores the

fact that the existence of exculpatory evidence in the

deposition is completely speculative, rendering the

claim meritless. Cooper v. State, 856 So. 2d 969, 974

(Fla. 2003) (holding Brady claim meritless where only

indication of existence of basis to impeach prosecution

witness was “offered in the form of pure speculation”);

see also Wright, 857 So. 2d at 870; Davis v. State, 736

So. 2d 1156, 1159 (Fla. 1999) (holding defendant

cannot prevail in postconviction context on basis of

“tenuous speculation”); see also Brown v. State, 827

So. 2d 1054, 1056 (Fla. 2d DCA 2002) (finding

defendant may not prevail in postconviction case on

“speculative, attenuated, and too fanciful” reasoning

in seeking to demonstrate prejudice). Like the alleged

DNA test results, the unavailability to Defendant of

the evidence technician’s deposition did not cause

prejudice. Had the deposition been as favorable to

Defendant as possible, i.e., had the evidence

24

technician conceded that no physical evidence

connected Defendant to the crime scene, the other

evidence in the case would preserve confidence in the

verdict. The same is true if both the DNA test results

and evidence technician’s deposition were as favorable

as possible to the Defendant and admitted into

evidence. Therefore, both parts of Defendant’s second

ground are without merit.

Doc. 7-9 at 296-97 (record citations omitted). The First DCA per curiam

affirmed the denial of relief without a written opinion. Doc. 7-13 at 3.

The Court addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications. Pursuant to

Brady v. Maryland, 373 U.S. 83, 87 (1963), “the suppression by the prosecution

of evidence favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment.” To prevail on a Brady

claim, the defendant must show: “(1) the evidence at issue is favorable to the

accused, either because it is exculpatory or because it is impeaching; (2) the

evidence was suppressed by the State, either willfully or inadvertently; and (3)

the defendant incurred prejudice.” Wright v. Sec’y, Fla. Dep’t of Corr., 761 F.3d

1256, 1278 (11th Cir. 2014) (citing Strickler v. Greene, 527 U.S. 263, 281-82

(1999)). “Brady’s prejudice prong, also referred to as the ‘materiality prong,’ is

met when ‘there is a reasonable probability that, had the evidence been

25

disclosed to the defense, the result of the proceeding would have been

different.’” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)).

Moultrie has not demonstrated that the evidence technician’s deposition

contained either exculpatory or impeaching testimony or that suppression of

the deposition prejudiced him. As discussed above, the evidence gathered by

the evidence technician was admitted into evidence at trial without objection.

Moultrie fails to explain how the evidence technician’s deposition would have

refuted any of the evidence presented at trial. Consequently, he has not

established a Brady violation occurred. After a review of the record and the

applicable law, the Court concludes that the state court’s adjudication of this

claim was not contrary to clearly established federal law, did not involve an

unreasonable application of clearly established federal law, and was not based

on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, Moultrie is not entitled to

federal relief on Ground Two.

C. Ground Three

Moultrie next asserts that the prosecutor’s failure to preserve potentially

exculpatory evidence violated his right to due process. Petition at 8. In support,

Moultrie complains that in closing the prosecutor argued that all the blood

26

reflected in the photographs belonged to the victim to refute Moultrie’s claim

of self-defense, but the DNA evidence collected from the crime scene was not

tested and was destroyed after trial.10 Id.

Moultrie raised a similar claim in his Rule 3.850 Motion and in his reply

to the State’s response to his Rule 3.850 motion. Doc. 7-9 at 9-11; see also

Response at 37-38. In addressing this claim in the post-conviction proceeding,

the State maintained that Moultrie failed to show a violation of Brady or

Arizona v. Youngblood, 488 U.S. 51 (1988).11 Doc. 7-9 at 73-77. In denying

relief, the post-conviction court concluded that Moultrie failed to establish a

Brady violation. Id. at 293-97. The post-conviction court, however, did not

discuss whether the State’s post-trial destruction of the DNA evidence violated

Moultrie’s rights. Id. On direct appeal, Moultrie argued that the State acted in

bad faith in destroying the DNA evidence post-trial. Doc. 7-11 at 33, 35-38. The

First DCA per curiam affirmed the denial of relief without a written opinion.

Doc. 7-13 at 3.

10 The State presented evidence that the victim’s DNA was on Moultrie’s shirt

and shorts. Doc. 7-2 at 334.

11 In Youngblood, the Supreme Court held “that unless a criminal defendant

can show bad faith on the part of the police, failure to preserve potentially useful

evidence does not constitute a denial of due process of law.” 488 U.S. 51, 58 (1988).

27

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

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

federal court review of state court adjudications. Moultrie has not shown that

the State acted in bad faith by destroying the DNA evidence after trial.

Moultrie knew, or should have known, at the time of trial that DNA evidence

had been collected. There is no indication that the State concealed this fact

from Moultrie, who could have requested the evidence to be tested but did not

do so. Notably, the State does “not have a constitutional duty to perform any

particular tests.” Youngblood, 488 U.S. at 59.

Further, “the State’s duty to preserve evidence is limited to ‘evidence

that might be expected to play a significant role in the suspect’s defense.’”

Davis v. Sellers, 940 F.3d 1175, 1187 (11th Cir. 2019) (quoting California v.

Trombetta, 467 U.S. 479, 488 (1984)). The blood evidence from the victim’s

bedroom or anywhere else in the house would not have aided the defense. Had

Moultrie’s blood been found in the victim’s bedroom, it would have conclusively

refuted Moultrie’s contention that he did not enter the bedroom. In addition,

such evidence would not have proven that Moultrie acted in self-defense

considering that the victim admitted that he and Moultrie engaged in a fight

after Moultrie hit him with a cinderblock. Thus, Moultrie’s blood could have

28

been in the home because of the fight, regardless of whether Moultrie was

acting in self-defense.

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.12

Thus, Moultrie is not entitled to federal habeas relief on Ground Three.

D. Ground Four

Last, Moultrie alleges he was denied his right to an impartial jury.

Petition at 10. According to Moultrie, he learned after trial that his stand-by

counsel heard one of the alternate jurors make statements to the prosecutor

that indicated the jurors were deliberating and forming opinions before the

close of evidence. Id. In his Reply, Moultrie also argues that his stand-by

counsel, who was reappointed after trial, was ineffective for failing to move for

a new trial on this basis. Reply at 11-12.

Moultrie raised a substantially similar claim in his Rule 3.850 Motion.

12 Nevertheless, even if the appellate court’s adjudication of the claim is not

entitled to deference, Moultrie’s claim is without merit for the reasons stated

previously.

29

Doc. 7-9 at 7-9. In denying relief, the postconviction court stated in pertinent

part:

In the instant case, the State and standby

counsel informed this Court of their concern that

jurors may have been speaking about the case before

deliberations began, based upon statements made by

the alternate juror. Specifically, their concern was that

members of the jury had expressed sympathy for the

female alleged victim and possibly discussed the

relative strengths and weaknesses of the State’s case

on the different counts. After a lengthy discussion, this

Court determined it to be appropriate to have the jury

continue to deliberate and, upon receiving their

verdict but prior to publishing it, this Court would

review and confirm that the jury abided by the jury

instructions. Thus, after the jury reached its verdict,

this Court reminded the jurors that they were advised

not to speak about the case until they heard all the

evidence, the arguments of the attorneys and

Defendant and the instructions on the law by the

Judge, and the jury confirmed that they followed the

instruction. Jurors are presumed to follow a court’s

instructions. Sutton v. State, 718 So. 2d 215, 216 (Fla.

1st DCA 1998). In the instant case, the jury affirmed

that they did follow this Court’s instructions. As such,

the record refutes Defendant’s factual allegation

which forms the basis for Ground One. Without a

factual basis, there was no error, much less

fundamental error.

Defendant asserts standby counsel was

ineffective for failing to warn Defendant of the alleged

juror misconduct after she learned about it at a

sidebar conference without Defendant. “[A] defendant

who represents himself has the entire responsibility

for his own defense, even if he has standby counsel.”

30

Behr v. Bell, 665 So. 2d 1055, 1057 (Fla. 1996). “Such

a defendant cannot thereafter complain that the

quality of his defense was a denial of ‘effective

assistance of counsel.’” Id. (citations omitted).

Defendant represented himself and was therefore

solely responsible for his defense. As such, Defendant

may not claim standby counsel was obligated to inform

him of the substance of the sidebar conference.

Defendant alleges counsel, previously standby

counsel, appointed to represent Defendant at

sentencing, failed to address the juror misconduct in

the Motion for New Trial. Because the allegation of

jury misconduct was factually refuted at the close of

deliberation, counsel was not ineffective for failing to

include that ground in the Motion for New Trial.

Additionally, Defendant has failed to show prejudice

in light of the overwhelming evidence of Defendant’s

guilt presented at trial, including the testimony of two

victims and the identification of one of the victims’

blood on Defendant’s clothing. Ground One is without

merit.

Id. at 292-93 (record citations omitted). The First DCA per curiam affirmed the

denial of relief without a written opinion. Doc. 7-13 at 3.

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

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

federal court review of state court adjudications. The record reflects that after

the alternate jurors were dismissed, Moultrie’s stand-by counsel told the trial

judge that she heard one of the alternate jurors tell the prosecutor that they

were discussing the female victim and felt sorry for her and they thought count

31

two was the strongest.13 Doc. 7-2 at 463-64. The trial judge decided to allow the

jury to continue to deliberate and question the jury regarding their

deliberations before publishing the verdict. Id. at 466. Before publishing the

verdict, the trial judge asked the jurors if they had followed her instructions

not to speak about the case until they had heard all the evidence, arguments

of the prosecution and defense, and instructions on the law from the judge. Id.

at 475. The jurors affirmed that they had done so. Id. Consequently, the post-

conviction court’s determination that there was no juror misconduct is a

reasonable determination of the facts in light of the evidence. Further, given

the jury’s representation, counsel cannot be deemed deficient for failing to

move for a new trial based on jury misconduct.

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

13 Although not mentioned by the trial or post-conviction court, the Court notes

that the incident occurred after the two alternate jurors had been dismissed. Thus,

the alternate juror could have been discussing a conversation he had with the other

alternate juror after they were dismissed, rather than premature conversations

between those jurors that deliberated and reached a verdict.

32

of the facts in light of the evidence presented in the state court proceedings.

Thus, Moultrie is not entitled to federal habeas relief on Ground Four.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Moultrie seeks issuance of a certificate of appealability, the

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

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

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

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

33

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

of a constitutional right and that jurists of reason would find it debatable

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

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

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED

WITH PREJUDICE.

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

and dismissing this case with prejudice.

3. If Moultrie appeals the denial of the 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.

34

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, 2023.

MARCIA MORALES HOWARD

United States District Judge

OrlP-1 6/9

C: Eddie James Moultrie, #J54553

Counsel of record

35