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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SAYTON WALLER,

Petitioner,

v. Case No. 3:20-cv-619-MMH-PDB

SECRETARY, DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

_______________________________

ORDER

I. Status

Petitioner Sayton Waller, an inmate of the Florida penal system,

initiated this action on June 12, 2020,1 by filing a Petition for Writ of Habeas

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

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

for murder in the first degree, attempted murder in the first degree, and

shooting or throwing deadly missiles. He raises four grounds for relief. See

Petition at 8-38. Respondents submitted a memorandum in opposition to the

Petition. See Response to Petition for Writ of Habeas Corpus filed March 26,

2021. (Response; Doc. 5). They also submitted exhibits. See Docs. 5-1 through

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

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

cite the document page numbers assigned by the Court’s electronic docketing

system.

5-3. Waller filed a brief in reply. See Reply filed June 24, 2021. (Reply; Doc. 8).

Waller’s Petition is ripe for review.

II. Relevant Procedural History

On November 13, 2013, the State of Florida charged Waller by

information with murder in the second degree (count one) and attempted

murder in the second degree (counts two and three). Doc. 5-1 at 44-45. On

January 16, 2014, the State charged Waller by superceding indictment with

murder in the first degree (count one), attempted murder in the first degree

(count two), and shooting or throwing deadly missiles (count three). Id. at 71-

73. Waller proceeded to a trial on counts one through three, and on April 30,

2015, a jury found him guilty on all counts. Id. at 187-91. On June 2, 2015, the

trial court sentenced Waller to concurrent terms of life in prison for counts one

and two and fifteen years in prison for count three. Id. at 203-09.

Waller appealed his convictions and sentences to Florida’s First District

Court of Appeal (First DCA). On direct appeal, Waller, with the benefit of

counsel, filed an initial brief in which he argued that the trial court erred by

instructing the jury on the principals theory (ground one) and by excluding

evidence that one of the victims and Waller’s co-defendant were members of

rival gangs (ground two). Doc. 5-2 at 339-89. The state filed an answer brief.

Doc. 5-2 at 391-418. Waller filed a reply brief. Doc. 5-2 at 420-30. The First

DCA per curiam affirmed Waller’s convictions and sentences without a written

opinion on November 15, 2016, Doc. 5-2 at 432, and issued the mandate on

December 1, 2016, id. at 433.

On July 9, 2018, Waller filed a motion for postconviction relief under

Florida Rule of Criminal Procedure 3.850. See Rule 3.850 Motion. Doc. 5-2 at

532-621. In his Rule 3.850 Motion, Waller alleged that trial counsel was

ineffective for failing to call witnesses (grounds one and two) and failing to

request jury instructions on justifiable and excusable attempted homicide

(ground three). The postconviction court denied Waller’s Rule 3.850 Motion on

December 13, 2018. Doc. 5-2 at 622-1677; Doc. 5-3 at 1-143. The First DCA per

curiam affirmed the denial of relief without a written opinion on February 13,

2020, Doc. 5-3 at 204-05, and issued the mandate on April 27, 2020, id. at 206.

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 [Waller’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 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), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of

AEDPA is to ensure that federal habeas relief functions as a guard against

extreme malfunctions in the state criminal justice systems, and not as a means

of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)

(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,

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:

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.’”[3] 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), cert. denied, 137 S.

Ct. 2298 (2017). 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).

3 The Eleventh Circuit has described the interaction between §

2254(d)(2) and § 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821

F.3d 1270, 1286 n.3 (11th Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).

B. 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

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

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,[4] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[5] 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.

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

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

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). In order for a petitioner to establish cause,

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).[6]

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

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

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

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.

C. 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

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

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, - 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

disturb a state-court decision denying the claim.

Richter, - 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

1. Subclaim A

Waller contends that trial counsel was ineffective for not calling

Torrence Hayes to testify that co-defendant Herode Joseph admitted to the

offenses. Waller states that he and Joseph, who were both present at the time

of the offenses, went to Hayes’s house later that night. Waller asserts that

Hayes would have testified that Waller was angry at Joseph for involving him

and that Joseph confessed and apologized to Waller but stated that he “had to

do it before” Liston Georges, the attempted murder victim, “got him.” Petition

at 29. Waller supported his claim in the postconviction court with an affidavit

from Hayes. Doc. 5-2 at 562-63. In the affidavit, Hayes stated that he heard

Joseph say that “I had to shoot him before he got me!” and that Joseph stated

he shot Georges in retaliation for an earlier shooting. Id.

The state court denied Waller’s ineffective assistance claim:

Here, the record refutes Defendant’s claim that counsel was

ineffective for failing to call Hayes as a witness. Defendant alleges

he asked counsel to investigate Hayes prior to trial, and counsel

did not sufficiently attempt to acquire Hayes as a witness. Prior to

Defendant’s testimony, this Court questioned Defendant under

oath about his counsel’s performance and additional witnesses for

the defense:

Trial Court: Any other witnesses that you

wanted your counsel to call on your

behalf?

Defendant: No, ma’am.

Trial Court: I’m sorry?

Defendant: No, ma’am.

Trial Court: Okay. Are you satisfied with the

defense that has been presented for

you up to this point?

Defendant: Yes, ma’am.

Defendant had an awareness of counsel’s alleged deficient

performance when this Court engaged in the above colloquy, yet

Defendant still expressed satisfaction with counsel’s performance.

He may not use his claims in the Motion to go behind his

representations to this Court. Accordingly, this Court denies

Ground One.

Id. at 624 (state court’s record citation omitted).

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. 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, Waller is not entitled to relief

on the basis of this claim.

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

is not entitled to deference, Waller’s claim is without merit. He has not shown

that counsel was ineffective for not calling Hayes. Waller asserts that he asked

counsel about Hayes before trial but counsel told him Hayes was unavailable.

Waller points out that earlier in the colloquy cited by the postconviction court,

he did indicate that he wanted his attorney to call unavailable witnesses. But

the record shows that the witness in question was Liston Georges. The state

court asked Waller about his decision to testify, and about calling any other

witnesses:

THE COURT: Do you - - let me ask you this. So far the State has

presented their case. You have presented all of your witnesses.

And you’re going to be your final witness.

Is that correct, [counsel?]

[COUNSEL]: That’s correct.

THE COURT: You will be your final witness. Do you understand

that?

THE DEFENDANT: Yes, ma’am.

THE COURT: Are you agreeable with the strategy so far your

counsel has, evidence for your trial and presented here in court?

THE DEFENDANT: Repeat that.

THE COURT: Are you satisfied with the defense that they are

putting forth for you and the case they put on for you with your

four witnesses before you?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Are there any other witnesses you wanted them to

call on your behalf?

THE DEFENDANT: Yes. But they are unavailable.

[COUNSEL]: He’s referring to the victim, Mr. Liston Georges.

THE COURT: Okay.

[COUNSEL]: I think Mr. Georges is in St. Thomas.

THE COURT: Okay.

[COUNSEL]: Is that correct?

THE COURT: The information that is going to be elicited from Mr.

Georges has that been elicited through other witnesses[?]

[COUNSEL]: I think most of it probably. I’m not sure what

additional information he wanted from him.

THE COURT: Mr. Waller, the information that was going to be

elicited from Mr. Georges has been elicited. He said the shooter

was shorter than six foot or under six foot and that they were thin

build. Is that the information you wanted elicited from him?[7]

THE DEFENDANT: No, Your Honor. The fact that he said me and

him never - - we didn’t beef.

Doc. 5-1 at 1138-40.

7 The trial court appears to have referred to Detective Tracy Stapp’s

testimony that Georges said the shooter was thin and was not taller than six

feet. Doc. 5-1 at 1080.

Waller then stated that there were no other witnesses he wanted counsel

to call and that he was satisfied with the defense up to that point. Id. at 1141.

Waller asserts that he told counsel about Hayes before trial. Petition at 29.

Thus, at the time of this colloquy with the trial court, both Waller and counsel

were aware that the decision not to call other witnesses included Hayes.

Waller’s sworn8 statements to the trial court are presumed to be truthful. Cf.

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (stating in the context of a plea

colloquy that a defendant’s representations “constitute a formidable barrier in

any subsequent collateral proceedings” and that “[s]olemn declarations in open

court carry a strong presumption of verity”).

Waller has not shown that counsel was ineffective under these

circumstances. “Which witnesses, if any, to call, and when to call them, is the

epitome of a strategic decision, and it is one that we will seldom, if ever, second

guess.” Knight v. Fla. Dep’t of Corr., 936 F.3d 1322, 1340 (11th Cir. 2019)

(quoting Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995)). Counsel’s

strategic decisions “are entitled to a ‘strong presumption’ of reasonableness.”

Dunn v. Reeves, 141 S.Ct. 2405, 2410 (2021) (quoting Richter, 562 U.S. at 104).

And because Waller agreed with the strategic decision not to call other

witnesses, he cannot prevail on a claim that counsel was ineffective for

8 Before beginning the colloquy, the trial court reminded Waller that he

was already under oath. Doc. 5-1 at 1135-36.

following this agreed-upon tactic. See Hammond v. Hall, 586 F.3d 1289, 1327-

28 (11th Cir. 2009) (collecting cases standing for the proposition that a

strategic decision by defense counsel does not amount to ineffective assistance

under Strickland when the defendant agrees with the decision); Acuna v.

United States, 494 F. App’x 961, 962-63 (11th Cir. 2012) (“This Court has

stated that ineffective assistance does not exist under Strickland where the

defendant ultimately concurred in his counsel’s tactical decision or

strategy. . . . Acuna essentially waived his right to contest his counsel’s

ineffectiveness [for not calling certain witnesses] by agreeing with that choice

at trial.”).

In his reply, Waller notes when the trial court asked whether he wanted

any other witnesses called, he said that he did but that “they” were

unavailable. See Reply at 4; Doc. 5-1 at 1139. Waller argues his use of the word

“they” shows that he was referring to multiple prospective witnesses, not just

Georges. But Waller did not correct counsel’s representation to the trial court

that the only prospective witness was Georges or express any desire to call

Hayes. Doc. 5-1 at 1139-41. Rather, he explained to the trial court what he

believed Georges would have said if called to testify and then stated that there

was no one else he wanted to call. Id. at 1140-41.

Waller next states in his reply that later in the trial, after closing

arguments, he addressed “a couple issues with [his] defense” with the trial

court and said that he had wanted counsel to subpoena Hayes. Doc. 15-2 at

113-14. Counsel explained that he tried to contact Hayes through his employer

and also through Waller’s mother but that Hayes never responded. Id. at 117-

18. Counsel stated, “To this day, [Hayes has] never contacted me. And I

explained that to Mr. Waller. I said, this guy is dodging me. He’s been dodging

me for over a year, and I never got a chance to talk with him.” Id. at 118.

Waller’s statement that he wanted counsel to subpoena Hayes, made

after closing arguments, is not sufficient to find that counsel was ineffective.

As the trial court noted when finding Waller’s later statement disingenuous,

this statement was wholly inconsistent with Waller’s earlier sworn

representations that there were no other witnesses he wanted counsel to call

and that he approved of the defense counsel had presented. Doc. 15-1 at 1139-

41; Doc. 15-2 at 122-24. When Waller had an opportunity to tell the trial court

that he wanted counsel to call Hayes, he instead expressed his satisfaction with

the defense and stated that he did not want other witnesses to be called. Doc.

5-1 at 1141. Waller has not shown ineffective assistance of counsel based upon

this later inconsistent statement to the trial court.

Finally, in his reply, Waller contends that he only agreed with counsel’s

strategy because counsel lied to him about Hayes’s availability. He cites

Hayes’s affidavit, in which Hayes stated he called the Office of the Public

Defender and left a message, but that no one returned his call. Doc. 5-2 at 563.

But Waller does not account for why he did not specifically tell the trial court

about Hayes. Again, when the trial court asked if he wanted to call “any other

witnesses,” instead of mentioning Hayes, Waller confirmed that he did not

want any other witnesses called. Doc. 5-1 at 1141. His current assertions are

insufficient to overcome the presumption that this sworn statement to the trial

court was true. See, e.g., Blackledge, 431 U.S. at 73-74.

Waller has failed to show deficient performance of counsel under

Strickland for not calling Hayes. He is not entitled to relief on Ground One,

Subclaim A.

2. Subclaim B

Waller argues that trial counsel was ineffective for failing to call

Detective Overholser as a witness. He states that Detective Overholser

investigated an August 26, 2013 incident in which Herode Joseph was shot in

the foot. Waller asserts that Detective Overholser could have testified that

Joseph was a specific target in that incident and that Liston Georges was

identified as a suspect. Waller contends that this testimony would have

contradicted Joseph’s testimony that he was not certain who shot him and also

would have shown that Joseph had motive to shoot Georges. The state court

denied Waller’s ineffective assistance claim:

Defendant asserts counsel was ineffective for failing to call

Detective J.L. Overholser (“Detective Overholser”) as a witness.

Detective Overholser investigated Georges’ shooting of Joseph on

August 26, 2013. Defendant alleges Detective Overholser would

have been available to testify at trial, and he would have testified

about his investigation of the shooting. He contends the testimony

would have demonstrated Joseph had a motive for attacking

Georges on October 13 [sic], 2013. Further, it would have

contradicted Joseph’s testimony that he did not know whether

Georges targeted him during the August 26th shooting. Defendant

claims the failure to call Detective Overholser as a witness

resulted in prejudice because his testimony could have cast doubt

on Defendant’s guilt.

In this case, the record refutes Defendant’s claim that counsel was

ineffective for failing to call Detective Overholser as a witness.

Defendant alleges he asked counsel to investigate Detective

Overholser prior to trial, and counsel did not take any action in

accordance with his request. Yet, under oath, Defendant expressed

satisfaction with his counsel’s performance and indicated that he

did not wish to call any witnesses on his behalf. He may not now

go behind his representations to this Court. See Kelley, 109 So.3d

at 812.

Assuming arguendo counsel performed deficiently when he failed

to call Detective Overholser as a witness, his actions did not

prejudice Defendant. On cross-examination, counsel impeached

Joseph by pointing out discrepancies in his statements about the

shooter’s identity during a taped police interview. The exchange is

as follows:

Q: And they talk about the bullet being removed.

And then they ask you if you [had] any idea who

shot you, right?

A: Yes, sir.

Q: And you hemmed and you hawed and you said,

I don’t know, right?

A: Yes, sir.

Q: And this was over two months after the time

that you’d been shot. You got shot August 26th,

right?

A: Correct.

Q: And the point they’re talking to you, it’s October

18th right?

A: Yes, sir.

Q: So you knew at that point who shot you, right?

A: Well, honestly, I still don’t know for a fact who

shot me, but I was told, just word of mouth from

people, that it was him.

Defendant’s counsel again referred to Joseph’s familiarity with

Georges and the improbability that Joseph would not know the

identity of his shooter. Counsel emphasized Joseph knew the color

of Georges’ car, the location of his apartment, and his reputation

for engaging in shootings. Consequently, Detective Overholser[’s]

absence as a witness did not prejudice the defense because counsel

used other sources to impeach Joseph’s credibility on the issue

identified by Defendant in the Motion. See State v. Reichmann,

777 So.2d 342, 356 (Fla. 2000) (“[F]ailing to present cumulative

impeachment evidence does not necessarily constitute ineffective

assistance.”).

Further, even if Detective Overholser had testified that Georges

targeted Joseph during the shooting, his testimony would not have

removed all motives for Defendant to shoot Georges because the

State introduced evidence of a contentious relationship between

Defendant and Georges. The State called Detective Tracy Stapp,

the lead investigator of the October 13th [sic] shooting, as a

witness. He discussed security camera footage of a verbal

altercation between Defendant and Georges, and the State

submitted the video as evidence. With the introduction of evidence

tending to demonstrate Defendant’s motive to harm Georges,

Detective Overholser’s testimony would not have cast doubt on

Defendant’s involvement in the attack. Accordingly, this Court

denies Ground Two.

Doc. 5-2 at 625-27 (state court’s record citations omitted).

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. 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, Waller is not entitled to relief

on the basis of this claim.

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

is not entitled to deference, Waller’s claim in Ground One, Subclaim B is

without merit. Waller asserts that he asked counsel about Detective

Overholser before trial but that counsel stated Detective Overholser was

unavailable, and points to the portion of the trial court’s colloquy where he

stated that he wanted to call unavailable witnesses. But as addressed, Waller

agreed under oath that he did not want counsel to call any witnesses other

than Liston Georges. Doc. 5-1 at 1139-41. For the same reasons and based upon

the same parts of the record discussed in Ground One, Subclaim A, supra,

Waller cannot establish ineffective assistance based on counsel’s strategic

decision, to which Waller consented, not to call additional witnesses. See

Hammond, 586 F.3d at 1327-28; Acuna, 494 F. App’x at 962-63.

In his reply, Waller raises the same argument that his use of the word

“they” when responding to the trial court’s question whether he wanted any

more witnesses called means he was referring to more than one witness. But

again, Waller did not tell the trial court that he wanted counsel to call

Detective Overholser. Doc. 5-1 at 1139-41. Nor did he correct counsel’s

statement to the trial court that the prospective witness in question was Liston

Georges. Id. Waller also notes that after closing arguments, he told the trial

court that he wanted counsel to subpoena “[t]he detective from the incident

where Herode Joseph got shot . . . .” Doc. 5-2 at 113-14. As described above,

however, this statement was inconsistent with Waller’s earlier sworn

representation in response to the trial court’s direct question whether he

wanted to call any other witnesses. Doc. 5-1 at 1139-41. Waller has not shown

that counsel performed deficiently in not calling Detective Overholser.

Further, Waller has not demonstrated a reasonable probability of a

different outcome at trial had counsel called Detective Overholser. Even if

Detective Overholser gave testimony suggesting that Joseph had motive to

shoot Georges, there was also evidence of tension between Waller and Georges.

Detective Tracy Stapp testified that he received information from George’s co-

worker about an altercation involving Georges several days before the

shooting. Doc. 5-1 at 929-30. Detective Stapp obtained surveillance video from

the mall where Georges worked that showed the altercation between Georges

and Waller. Id. at 930.

Tr’oneshia Toler, the mother of Waller’s child, went to the mall with

Waller and they walked by the store where Georges worked. Id. at 754-55.

Toler testified that Waller asked Georges what time he got off, and agreed the

video showed that Georges “ha[d] his arms folded, but he ha[d] his fingers in

his armpit” and made a gesture “like I’m going to shoot you.” Id. at 756, 781-

82. Defense witness Detective E.M. Cayenne testified that the video might

have shown Waller lifting up his shirt and acting like he had a gun and that it

showed Georges “fingering as though he had a gun.” Id. at 1125. Further, Toler

testified that Georges and Waller were “beefing” for a “couple years” and that

she had heard threats from Georges. Id. at 752. Waller also agreed in his

testimony that Georges started making a shooting motion with his hand during

the mall incident. Id. at 1170-71. Therefore, evidence established some conflict

between Georges and Waller.

Additionally, counsel cross-examined Herode Joseph about whether he

knew that Georges shot him in the August 2013 incident. Joseph testified that

even though he initially told police he did not know who shot him, he had

actually heard that it was Georges. Doc. 5-1 at 707-08. Joseph conceded that

in his deposition he had referred to being shot by Georges. Id. at 734. And Toler

agreed that in her deposition, she testified that Joseph told her Georges and

his brother shot him. Id. at 779. Accordingly, there was evidence from which

the jury could infer Joseph’s potential motive. Waller has failed to demonstrate

a reasonable probability of a different outcome at trial even if additional

evidence confirming this potential motive was presented through Detective

Overholser’s testimony.

Finally, Waller’s claim is too speculative to warrant federal habeas relief

because he presents no evidence that Detective Overholser would have

testified as he contends. See Shaw v. United States, 729 F. App’x 757, 759 (11th

Cir. 2018) (“[The Eleventh Circuit Court of Appeals has] stated that complaints

about uncalled witnesses are not favored, because the presentation of

testimony involves trial strategy and ‘allegations of what a witness would have

testified are largely speculative.’” (quoting Buckelew v. United States, 575 F.2d

515, 521 (5th Cir. 1978))); Streeter v. United States, 335 F. App’x 859, 864

(11th Cir. 2009) (“In a habeas petition alleging ineffective assistance of counsel,

mere speculation that missing witnesses would have been helpful is

insufficient to meet the petitioner’s burden of proof.” (citing Johnson, 256 F.3d

at 1187)). For all of these reasons, Waller is not entitled to relief on Ground

One, Subclaim B.

B. Ground Two

As Ground Two, Waller contends that the trial court violated his federal

constitutional rights by providing the jury with the principals instruction when

he was not charged as a principal. Waller asserts that providing the instruction

amounted to an improper constructive amendment of the indictment and

turned his trial testimony into a de facto confession.

This claim is procedurally defaulted. When Waller challenged the

instruction on direct appeal, he did not raise a federal issue. Doc. 5-2 at 376-

82. Rather, he presented the claim as one of state law. Id. Further, he only

argued that the evidence adduced at trial did not support the instruction—not

that giving the instruction violated his rights by constructively amending the

indictment or that it rendered his testimony a de facto confession. Id.

Waller concedes that the claim raised in Ground Two is defaulted. Reply

at 10. But Waller contends that the Court may review his defaulted trial court

error claim because he meets the fundamental miscarriage of justice exception.

He asserts that he has presented new evidence that the jury did not hear that

shows his actual innocence. By stating that the new evidence of his actual

innocence is set out in Ground One, he appears to refer to the affidavit from

Torrence Hayes and the potential testimony of Detective Overholser. See Reply

at 11.

Waller has not demonstrated actual innocence for purposes of

overcoming the procedural default. When considering a gateway claim of

actual innocence based upon new evidence, “the habeas court’s analysis is not

limited to such evidence.” House v. Bell, 547 U.S. 518, 537 (2006). Rather,

“Schlup makes plain that the habeas court must consider all the evidence, old

and new, incriminating and exculpatory, without regard to whether it would

necessarily be admitted under ‘rules of admissibility that would govern at

trial.’” Id. at 537-38 (quoting Schlup, 513 U.S. at 327-28). Additionally, “[a]

court may consider how the timing of the submission and the likely credibility

of the affiants bear on the probable reliability of . . . evidence [of actual

innocence].” Schlup, 513 U.S. at 332. But, as addressed, successful claims of

actual innocence are very uncommon given the improbability that new

evidence will establish a petitioner’s factual innocence. See id. at 324.

The shooting occurred on October 7, 2013, in the parking lot of an

apartment complex where the victims and Waller lived. Doc. 5-1 at 658, 1161.

Liston Georges, Kamilah Urita, and their infant were in their parked car when

Waller and Joseph pulled up in a second car. Id. at 621, 671-72, 692, 1164.

Witness Terica Christianson saw a man standing at the open driver’s

side door of the victims’ car. Id. at 615. She observed that he was about six feet

tall and slender, had a “do-rag” on his head, and wore a black short-sleeved

shirt. Id. at 615-17, 624. Christianson did not see him wearing a medical boot

or using crutches. Id. at 617. She saw the man fire a black firearm into the car

before getting into the front passenger seat of the second car. Id. at 617-18. The

second car drove away. Id. at 619. The man was not limping when he ran to

the parked car and had no trouble moving. Id. at 618-19.

Witness Katty Morales heard gunshots and turned around to see a man

get into the front passenger’s side of the second car. Id. at 635-38. She believed

he was wearing a black hoodie with the hood up over his head. Id. at 638. The

man was not limping and was not wearing a medical boot. Id. at 638-39.

Christianson and Morales approached the victims’ car, where they saw that

Georges was injured and Urita was non-responsive. Id. at 619-20, 641-42, 655.

Urita died at the scene from multiple gunshot wounds. Id. at 872. It appears

that the baby was uninjured. Id. at 620-21.

Tr’oneshia Toler testified about events before and after the shooting. She

addressed the event at the mall several days prior to the shooting and stated

that Waller and Georges had been “beefing” for years. Id. at 752. She also

testified that she picked up Waller on the morning of October 7, 2013, and

noticed a black gun in his pocket. Id. at 760. Waller told Toler that he had seen

Georges and Urita at the apartment complex and that he had been watching

them. Id. at 761. Toler and Waller picked up Joseph from a medical

appointment, and Toler saw that Joseph was wearing a medical boot. Id. at

760. They went to Toler’s aunt’s house. Id. at 761-62.

Waller and Joseph left later that afternoon. Id. at 762. Toler observed

Waller wearing a black shirt and Joseph wearing a white shirt. Id. at 765.

Later, when Waller and Joseph returned, Waller was shirtless and Joseph

wore a gray tank top. Id. at 766, 770. Toler saw Waller place a black gun

wrapped up in a white shirt between the mattresses on Toler’s cousin’s bed. Id.

at 766-69. Toler drove Waller and Joseph to Waller’s aunt’s house. Id. at 769-

71. Toler did not see Joseph driving her car that day and believed that Waller

had been driving her car. Id. at 775, 783. Toler remembered that Joseph was

wearing a boot, but also stated that she had seen him walk without crutches.

Id. at 776, 785.

Joseph and Waller testified to different versions of the events, and each

identified the other as the shooter. Joseph stated that on the morning of the

shooting, he had an x-ray on his foot, which was injured in the August 2013

shooting. Id. at 682. Joseph testified that he wore a medical boot and was on

crutches. Id. at 684. As addressed, Joseph stated that he did not know who shot

him but admitted that he had heard that it was Georges. Id. at 683, 707-08,

734.

Joseph testified that on the day of the shooting, he was wearing a white

shirt with a gray tank top underneath. Id. at 690, 695. He and Waller went to

Waller’s apartment that day in Toler’s car. Id. at 687-88. Joseph testified that

he was driving and that he was able to do so because the boot was on his left

leg. Id. at 687-89. Joseph testified that as he waited in the car, Waller went to

his apartment and returned with a bag. Id. at 690.

Joseph testified that as they were pulling away, Waller asked him to

stop. Id. at 692. Joseph did so, and Waller said he had to do something. Id. at

692-93. As Waller exited the car, he pulled his black t-shirt over his head; at

that time, Joseph noticed that Waller had a black gun. Id. at 692-94. Waller

opened the front driver’s side door of the victims’ car and started shooting. Id.

at 694. Waller returned to the car and Joseph drove away. Id. at 695. They

went to Toler’s aunt’s house. Id. at 696-97.

Joseph admitted that was not initially truthful when police questioned

him. Id. at 709. He changed his statements after police said they knew he was

not truthful, that he had a lot to lose, that he could either be a witness or a

suspect, and that he could help himself if he was a witness. Id. at 714-20.

Joseph was charged with second-degree murder and attempted second-degree

murder. Id. at 727. The charges were amended and Joseph pleaded guilty to

accessory to murder after the fact. Id. at 700, 727-28. He testified that he had

not been sentenced at the time of Waller’s trial, that he could receive up to 30

years in prison, and that the State did not promise him anything in exchange

for his testimony. Id. at 700-01.

When he testified, Waller admitted being present at the shooting but

testified that he had no advance knowledge of it. Waller said that despite

wearing a boot, Joseph did not have trouble walking. Id. at 1154. Waller also

testified that while he and Joseph were on the way to Waller’s apartment that

afternoon, they stopped at Joseph’s house where Joseph got a black t-shirt. Id.

at 1157-58. According to Waller, Joseph walked up to Waller’s apartment

without his crutches. Id. at 1173. Waller and Joseph were at Waller’s

apartment for a couple of hours. Id. at 1159. When Waller left, he saw Urita

putting her baby in the car and then saw Georges. Id. at 1163-64. Waller

testified that as he began to drive away, Joseph told him to hold on. Id. at 1164.

Waller testified that Joseph wrapped a black t-shirt around his head and

shoulders, got out of the car, went up to Georges’s open car door and began

shooting into the car. Id. at 1164. Waller drove them away, and wrapped the

gun in a shirt and gave it to Toler to hide. Id. at 1165-68. Waller testified that

the gun was Joseph’s, not his. Id. at 1145-46. He also testified that he and

Joseph went to Torrence Hayes’s house, where Joseph incriminated himself by

saying that he “had to get” Georges. Id. at 1169-70.

During his recorded police interview, Waller denied being present during

the shooting and denied having a gun. Id. at 963, 971-73, 990, 1013, 1019-20.

He also denied having any conflict with Georges. Id. at 966-70. When asked

during his trial testimony why he did not tell police Joseph was responsible or

tell police about Torrence Hayes, Waller testified that he was scared, did not

want to implicate himself, and was worried about retaliation. Id. at 1179-83.

He admitted that he wiped off the gun and wrapped it in a shirt. Id. at 1198-

1200. Waller testified that when he interacted with Georges at the mall, he

was merely trying to clear up an “allegation” and “speculation.” Id. at 1208,

1212. Waller testified that he was with Joseph during the August 2013

shooting, but he thought Georges was aiming at Joseph. Id. at 1205-07.

Physical evidence and test results were also introduced at trial. Police

recovered a gun from the mattress in Toler’s aunt’s house Id. at 793, 941.

Projectiles recovered from the scene and the Medical Examiner’s office and

shell casings recovered from the scene were determined to have been fired from

the gun. Id. at 846-48, 942-44.

A fingerprint over the top of the front driver’s side window of the victims’

car matched Waller’s left ring finger. Id. at 894-95, 900. A black t-shirt was

found inside Toler’s car. Id. at 826-27. The white shirt the gun was wrapped in

contained a partial DNA profile that matched Herode Joseph. Id. at 914-15,

920-22, 945. The gun’s slide had a completed DNA profile that matched Waller.

Id. at 916-17, 944-45. In addition, Detective Stapp testified that he learned

during his investigation that Waller was 6 feet, 1 inch tall, Joseph was about

5 feet, 8 inches tall, and they both weighed about 160 pounds. Id. at 946.

Waller called several witnesses at trial. Anzua Mason, who was at the

apartment complex when the shooting occurred, testified that he heard

gunshots and saw a man wearing a white shirt run across the street. Id. at

1086-87. Toler’s cousin Mar’nae Harris testified that it was Toler who hid the

gun under the mattress. Id. at 1103-05. Waller also called Detective E.M.

Cayenne, who was present during Georges’ interview and testified that

Georges described the shooter as a black male not taller than 6 feet, wearing a

black t-shirt, with a thin build and a mask over his face. Id. at 1127-28.

Detective Cayenne testified that Georges did not describe the shooter as having

a boot or using crutches. Id. at 1129. A responding officer asked Georges who

shot him, but Georges only said he could not move, and did not identify the

shooter. Id. at 671, 675-76.

When considered in the context of the overall evidence, Hayes’s

affidavit—executed in July 2018, four years after Waller’s April 2015

conviction, by an individual who may have refused to contact Waller’s counsel

to participate in the trial—is insufficient to show Waller’s factual innocence.

Doc. 5-2 at 560; see Schlup, 513 U.S. at 332. Further, there is no evidence of

what statements Detective Overholser would have made. But even if Detective

Overholser stated, as Waller submits, that Georges was a suspect in the

August 2013 shooting and that Joseph was the target, such evidence does not

show Waller’s actual innocence of the October 2013 shooting. Waller does not

show that in light of the alleged new evidence, it is more likely than not that

no reasonable juror would have found him guilty. See Johnson, 256 F.3d at

1171. Therefore, Waller does not establish application of the fundamental

miscarriage of justice exception to overcome the default of the claim raised in

Ground Two.

But even if Waller did meet this exception, thereby entitling him to

review of his trial court error claim on the merits, the claim warrants no relief.

Waller argues that the instruction amounted to a constructive amendment of

the indictment and turned his testimony into a de facto confession. He also

asserts that the jury was confused by the instruction, as shown by a question

the jury submitted during deliberations. The question read, “Does the

principals clause transfer responsibility for premeditation or just the act

itself?” Doc. 5-1 at 192.

Waller fails to show any federal constitutional violation in providing the

principals instruction. A federal habeas court is “constrained to determine only

whether the challenged instruction, viewed in the context of the entire charge

and the trial record, ‘so infected the entire trial that the resulting conviction

violate[d] due process.’” Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 688

(11th Cir. 2005) (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)). Waller

has not met this standard.

A person is liable as a principal if he “commits . . . or aids, abets, counsels,

hires, or otherwise procures [any criminal offense] to be committed.” § 777.011,

Fla. Stat. The jury was instructed, consistent with Florida’s standard jury

instructions, that:

If the defendant helped another person or persons commit a crime,

the defendant is a principal and must be treated as if he had done

all the things the other person or persons did if:

1. the defendant had a conscious intent that the criminal act be

done and

2. the defendant did some act or said some word which was

intended to and which did incite, cause, encourage, assist, or

advise the other person or persons to actually commit the

crime.

To be a principal, the defendant does not have to be present when

the crime is committed.

Doc. 5-1 at 160; see Fla. Std. Jury Instr. (Crim.) 3.5(a).

Counsel opposed giving the principals instruction, asserting that the

evidence did not support it. Doc. 5-2 at 130-31. Counsel argued that the State’s

evidence supported the theory that Waller committed the offenses on his own

and that the State put forth no evidence of planning or organization between

Waller and Joseph. Id. Counsel noted that the defense evidence supported the

theory that Joseph committed the offenses on his own, with no participation

by Waller. Id.

The State countered that even if, as Waller testified, Joseph got out of

the car and shot the victims, there was evidence that Waller had been watching

the victims earlier in the day and supplied the car and gun. Id. at 131-32. The

State asserted that such evidence showed Waller at least assisted in the

commission of the offenses. Id. The trial court found that there was sufficient

evidence to support the principals instruction. Id. at 132.

Waller has not demonstrated a constitutional violation. Due process

requires that the charging document provide a defendant with adequate notice

of the charges against him. A charging document is sufficient “if it, first,

contains the elements of the offense charged and fairly informs a defendant of

the charge against which he must defend, and, second, enables him to plead an

acquittal or conviction in bar of future prosecutions for the same

offense.” Hamling v. United States, 418 U.S. 87, 117, (1974).

Waller has not shown that the State was required to charge him as a

principal in the indictment to satisfy his federal due process rights. See United

States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984) (“Aiding and abetting

need not be specifically alleged in the indictment. . . .”); United States v.

Walker, 621 F.2d 163, 166 (5th Cir. 1980) (stating that the trial court “did not

err in giving an instruction on aiding and abetting even though the defendant

was not specifically indicted on that count”); United States v. Tucker, 402 F.

App’x 499, 502 (11th Cir. 2010) (“The district court did not err, plainly or

otherwise, when it gave an aiding-and-abetting instruction to the jury,

although such a theory of guilt was not alleged in the indictment.”); Emil v.

Baker, 667 F. App'x 277, 278 (9th Cir. 2016) (noting that “there is no Supreme

Court precedent holding that due process requires an information to

specifically allege a theory of aiding and abetting”). In addition, in Florida, “a

defendant need not be charged as a principal to support a conviction as a

principal.” Ford v. State, 306 So. 3d 417, 422 (Fla. 1st DCA 2020).

Thus, Waller fails to establish that giving the principals instruction

amounted to a constructive amendment of the indictment. “A constructive

amendment ‘occurs when the essential elements of the offense contained in the

indictment are altered to broaden the possible bases for conviction beyond

what is contained in the indictment.’” United States v. Madden, 733 F.3d 1314,

1318 (11th Cir. 2013) (quoting United States v. Keller, 916 F.2d 628, 634 (11th

Cir. 1990)). Here, consistent with the above-stated authority that aiding and

abetting need not be included in the charging document, Waller fails to

establish that the trial court’s standard principals instruction altered any

essential element of the offense. See United States v. Thomas, 631 F. App’x

847, 851 (11th Cir. 2015) (stating that “[u]nder our clear case law, the

indictment was not constructively amended in violation of the Fifth

Amendment when the district court gave the aiding and abetting instruction,

even though aiding and abetting was not charged in the indictment” (citing

Martin, 747 F.2d at 1407 and Walker, 621 F.2d at 166)).

Nor has Waller established that giving the principals instruction turned

his testimony into a de facto confession. Waller admitted to driving Joseph

away from the crime scene and to giving the gun to Toler to hide after the

shooting. Doc. 5-1 at 1164-65, 1168. But Waller testified that he did not see

Joseph’s gun until Joseph got out of the car, that Joseph did not say he was

going to try to kill Georges, and that he had no prior knowledge of the shooting.

Id. at 1176, 1178, 1186. Therefore, according to Waller’s testimony, he did not

intend for the crime to occur, took no action in furtherance of the crime, and

only became involved after Joseph, acting on his own, committed the shooting.

Thus, he did not “commit[] . . . or aid[], abet[], counsel[], hire[], or otherwise

procure[] [the offense] to be committed,” as required to be liable as a principal.

See § 777.011, Fla. Stat.

Further, Waller’s claim that the jury was confused about the instruction

and improperly applied it to convict him as a principal for his actions after the

shooting is entirely speculative and does not establish a constitutional

violation. See Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir. 2008) (“It is

the petitioner’s burden to establish his right to habeas relief and he must prove

all facts necessary to show a constitutional violation.”). Waller has not shown

that the instruction misled the jury into believing that even if he was not the

shooter, his involvement after the shooting—driving Joseph away from the

scene and helping to hide the gun—was on its own sufficient to find him guilty

of murder. The jury asked if the “principals clause transfer[s] responsibility for

premeditation or just the act itself?” Doc. 5-1 at 192. No part of the jury’s

question, which indicated that they were considering the elements of first-

degree murder, suggested that they believed the principals instruction applied

to events that only occurred after the murder.9

Finally, there was no error in giving the principals instruction because

there was evidence to support a finding that Waller was directly responsible

for the shooting. The Supreme Court has held that “it [is] no violation of due

process [for a] trial court [to] instruct[ ] a jury on two different legal theories,

one supported by the evidence, the other not.” Sochor v. Florida, 504 U.S. 527,

538 (1992). The State presented evidence, as addressed in the discussion of the

fundamental miscarriage of justice exception, from which the jury could

conclude that Waller was directly responsible for the crimes.

Even besides Joseph’s testimony directly implicating Waller, other

evidence supported the conclusion that Waller was the shooter. Waller was

seen with a black gun on the day of the shooting, and the black gun recovered

from Toler’s aunt’s house had his DNA on it. Doc. 5-1 at 760, 916-17, 944-45.

Further, his fingerprint was on the driver’s side window of the victims’ car, and

the shooter was observed standing next to the driver’s side door. Id. at 615,

894-95, 900. Waller was also seen wearing a black shirt that day, and witnesses

remembered seeing the man who got into the second car wearing a black shirt

9 The jury instruction for first-degree murder included the elements that (1)

Urita was dead; (2) the death was caused by the criminal act of Waller; and (3)

Urita’s killing was premeditated. Doc. 5-1 at 157.

or hoodie. Id. at 615, 624, 638, 765. At approximately six feet, one inch tall and

160 pounds, Waller’s build was consistent with Christianson’s description of

the shooter as about six feet tall and slender. Id. at 616-17, 946. Georges also

stated that the shooter was thin. Id. at 1127-28. Further, no witness reported

seeing anyone at the scene wearing a medical boot or having any trouble

moving. Id. at 618-19, 638-39, 1129. But there was evidence that Joseph was

in a medical boot. Id. at 760.

Accordingly, even if Waller had overcome the procedural default of the

claim in Ground Two, it affords Waller no basis for relief.

C. Ground Three

Waller argues that trial counsel was ineffective for not adequately

arguing against providing the principals instruction. Waller acknowledges

that the claim in Ground Three is procedurally defaulted because he did not

raise it on postconviction review but argues that he is entitled to application of

the cause and prejudice exception under Martinez. 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) 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 it “has some merit.” Martinez, 566 U.S. at 14. A claim

that does not have any merit or that is wholly without factual support is not

substantial. Id. at 15-16. A defaulted claim is substantial under Martinez if

“reasonable jurists ‘would find it debatable whether the petition states a valid

claim of the denial of a constitutional right.’” Clark v. Comm’r, Ala. Dep’t of

Corr., 988 F.3d 1326, 1331 (11th Cir. 2021) (quoting Hittson v. GDCP Warden,

759 F.3d 1210, 1269-70 (11th Cir. 2014)).

Waller has not established that his defaulted claim of ineffective

assistance of trial counsel is substantial under Martinez. Waller’s counsel

argued that there was insufficient evidence to support giving the principals

instruction. Doc. 5-2 at 130-31. Waller asserts that instead counsel should have

argued that giving the principals instruction amounted to a surprise

amendment of his indictment that violated his federal right to adequate notice

of the charges against him and turned his trial testimony into a de facto

confession. According to Waller, if counsel had raised these arguments, the

trial court would not have given the principals instruction and the jury would

have acquitted him. Waller once again points to the jury’s question in support

of his contention that the jurors were confused and thought they had to convict

him even if they did not believe he was the shooter.

For the reasons discussed above with respect to Ground Two, Waller has

not established error in giving the principals instruction. Counsel is not

ineffective for failing to raise a meritless claim. See Hollis v. United States,

958 F.3d 1120, 1124 (11th Cir. 2020) (“Hollis’s counsel did not perform

deficiently by failing to raise a meritless objection.”); Pinkney v. Sec’y, DOC,

876 F.3d 1290, 1297 (11th Cir. 2017) (“[A]n attorney will not be held to have

performed deficiently for failing to perform a futile act, one that would not have

gotten his client any relief.”).

Waller also contends that the jury was confused in applying the

instruction in part due to the prosecutor’s comment in closing arguments that

“even if you think he’s driving that car, he’s still just as guilty under the law.”

Doc. 5-2 at 28. But Waller’s claim is speculative, and he does not address the

full context of this statement. Prior to this statement, the prosecutor reiterated

the portion of the principals instruction that the defendant must have a

conscious intent that the criminal act be done and must do some act or say

some word that is intended to incite, encourage, or assist in commission of the

act. Id. The prosecutor then argued that Waller intended for the murder to

occur and participated and assisted in the murder by providing the car. Id.

Thus, the identified prosecutorial comment was premised on the State’s

assertion that even if Waller was not the shooter, he intended for the offense

to occur and that providing the vehicle used to get to the apartment complex

was an act in furtherance of its commission. Id. The prosecutor’s comment,

considered in context, does not suggest that Waller was liable as a principal

for the charged offenses merely for driving Joseph away afterward if he had no

knowledge or intent that the crime was going to happen.

Moreover, the prosecutor’s comment is not the instruction to the jury.

The trial court provided the principals instruction to the jury and directed the

jurors that they must decide the case based upon the evidence presented

during the trial and that they must follow the law as set out in the instructions.

Doc. 5-1 at 160, 180. The jury is presumed to follow the trial court’s

instructions. See Brown v. Jones, 255 F.3d 1273, 1280 (11th Cir. 2001) (“We

have stated in numerous cases . . . that jurors are presumed to follow the court’s

instructions.”); Raulerson v. Wainwright, 753 F.2d 869, 876 (11th Cir. 1985)

(“Jurors are presumed to follow the law as they are instructed.”).

Having failed to establish either deficient performance or resulting

prejudice, Waller has not shown that his defaulted claim of ineffective

assistance of trial counsel is substantial under Martinez. Therefore, he has

failed to establish that the cause and prejudice exception applies to excuse the

default of his claim. Accordingly, the claim raised in Ground Three affords

Waller no basis for relief.

D. Ground Four

As Ground Four, Waller argues that trial counsel was ineffective for

failing to file a motion for arrest of judgment on the basis that the principals

instruction, together with the lack of an interrogatory on the verdict form and

the jury’s question, created a presumption that his conviction rests on the

uncharged principals theory.

Conceding that his claim is unexhausted, Waller once again argues that

he meets the cause and prejudice exception under Martinez to excuse the

default. But he has not shown that his ineffective assistance of trial counsel

claim is substantial. Waller contends that counsel should have filed a motion

for arrest of judgment.10 Such a motion may be based on the contention that:

(a) the indictment or information on which the defendant was tried

is so defective that it will not support a judgment of conviction;

. . .

(c) the verdict is so uncertain that it does not appear therefrom

that the jurors intended to convict the defendant of an offense for

which the defendant could be convicted under the indictment or

information; or

10 Counsel filed a motion for a new trial. One of the grounds for the

motion was the alleged error in giving the principals instruction. Doc. 5-1 at

201-02. The state court denied the motion without discussion. Id. at 213.

(d) the defendant was convicted of an offense for which the

defendant could not be convicted under the indictment or

information.

Fla. R. Crim. P. 3.610(a), (c)-(d).

Waller has not shown that the defaulted ineffective assistance claim is

substantial. The gravamen of Waller’s claim is that a motion for arrest of

judgment would have provided an avenue to argue that he was convicted based

on the uncharged principals theory. But for the reasons discussed in Grounds

Two and Three, supra, Waller has failed to show that giving the principals

instruction when he was not charged as a principal violated his rights under

either state or federal law. And Waller has not shown that the indictment was

deficient simply because it did not charge Waller as a principal or that giving

the principals instruction resulted in a conviction that violated his rights.

Waller also has not shown, as required to prevail on a motion for arrest

of judgment, that (1) the indictment was so defective that it did not support a

judgment of conviction, (2) the verdict is so uncertain that it does not appear

that the jurors intended to convict him for an offense for which he could be

convicted under the indictment, or (3) he was convicted of an offense for which

he could not have been convicted under the indictment. See Fla. R. Crim. P.

3.610(a), (c)-(d). Therefore, Waller cannot establish that counsel performed

deficiently in not raising the proposed claim in motion for arrest of judgment

or that he was prejudiced by counsel’s action. See Hollis, 958 F.3d at 1124;

Pinkney, 876 F.3d at 1297. Waller therefore has not established that his

defaulted claim of ineffective assistance of trial counsel is substantial under

Martinez. Accordingly, he does not overcome the procedural default of the

claim raised in Ground Four.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Waller 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, Waller “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.

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 Waller 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.

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

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 18th day of

August, 2028.

MARCIA MORALES HOWARD

United States District Judge

TpaP-1

C:

Sayton Waller, #J55213

Counsel of record

50