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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

VERNORD LAVON BRIGHT, III,

Petitioner,

v. Case No. 3:19-cv-1104-TJC-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Vernord Lavon Bright, III, an inmate of the Florida penal

system, initiated this action, through counsel, by filing a Petition Under 28

U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 1). Petitioner challenges a state

court (Duval County, Florida) judgment of conviction for sexual battery (Count

One) and sexual battery with a deadly weapon (Count Two) for which he is

serving a life term of incarceration. Id. Respondents filed a Response (Doc. 11)

with exhibits (Docs. 11-1 to 11-19; Resp. Ex.). Petitioner filed a counseled Reply

(Doc. 14). This case is ripe for review.

II. Governing Legal Principles

A. Standard Under AEDPA

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

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

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

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions in

the state criminal justice systems, and not as a means of error correction.’” Id.

(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

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

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

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

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

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

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

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

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

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

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

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

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

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

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

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

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

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

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

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

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

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

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

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

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

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

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

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

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

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

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

deference to state courts by conflating error (even clear

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

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

application of federal law is different from an incorrect

application of federal law.”).

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

citations modified).

B. Exhaustion and 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 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); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

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,[1] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[2] supra, at 84–85, 97 S. Ct.

2497. A state court’s invocation of a procedural rule to

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

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

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, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Even though 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 and prejudice,

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).[3] 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).

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

Without 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 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 Counsel

“The Sixth Amendment guarantees criminal defendants effective

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

performance falls below an objective standard of reasonableness and thereby

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

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

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

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

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

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

2010). Since both prongs of the two-part Strickland test must be satisfied to

show a Sixth Amendment violation, “a court need not address the performance

prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.

(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in

Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, which we expect will often be so, that course should

be followed.” 466 U.S. at 697.

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

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

that determination was unreasonable - a substantially higher threshold.”

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

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

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

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

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

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

representation was ‘within the wide range of reasonable professional

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

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

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

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

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

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

2004).

III. Analysis

A. Ground One

Petitioner argues that “the state trial court erroneously excluded

impeachment evidence of the alleged victim’s inconsistent statements that

showed her motivation to lie that the sex was not consensual . . . .” Doc. 1 at 3.

Petitioner contends that the victim had “a motive to lie about the sexual

encounter with Petitioner Bright and claim it was rape rather than consensual

sex. Her motive was to keep her mother from knowing that she engaged in

consensual sex.” Id. at 4. Petitioner states that after the incident, the victim

told the Child Protection Team (CPT) nurse that “she had prior sexual

encounters.” Id. But, at a later deposition when her mother was present, the

victim “denied ever having sex before the incident.” Id. According to Petitioner,

the “state trial court erroneously granted the State’s motion to prohibit defense

counsel from confronting Petitioner Bright’s accuser without providing reasons

and without the requisite balancing of the probative value against any

prejudicial effect.” Id.

Respondents argue that this claim is unexhausted because Petitioner

failed to present the federal nature of this claim to the state court. Doc. 11 at

31. Alternatively, Respondents argue that Florida’s rape shield law prohibits

questioning victim-witnesses in sexual battery cases about their previous

sexual activity. Id. at 31-32.

On direct appeal, Petitioner, through counsel, raised six claims. In Claim

Three, he alleged that the “trial court erroneously excluded impeachment

evidence of the alleged victim, which denied Mr. Bright’s Sixth Amendment

right to confront his accuser and denied his right to present a full and fair

defense.” Resp. Ex. 6 at 46 (emphasis added). Petitioner cited to and analyzed

Florida cases discussing the Sixth Amendment. See id. at 46-50. The state filed

a response, Resp. Ex. 7, and Petitioner filed a counseled reply, Resp. Ex. 8. The

First District Court of Appeal issued a written opinion per curiam affirming

Petitioner’s conviction and sentence on Count Two but reversing and remanding

his conviction and sentence on Count One.4 Resp. Ex. 9. As to this specific claim,

the First DCA affirmed without comment. Id. Considering the record, the Court

finds this claim is sufficiently exhausted. Nevertheless, as explained below,

Petitioner is not entitled to relief on Ground One.

Petitioner’s trial counsel sought to introduce the victim’s statement made

at her deposition that “she has never had sex” and the statement to “CPT and

medical experts . . . [that] she had had consensual sex prior” “for impeachment

purposes only.” Resp. Ex. 3 at 16, 22 (defense counsel arguing, “The reason

being the inconsistencies in the statement . . . . It is the simple fact that when

asking her and she says, no, I have never. . . . [I]t is not to show that she had

sex prior, it is to show . . . that it is an inconsistent statement that she makes.”).

4 Petitioner was originally convicted and sentenced for two counts of sexual

battery with a weapon. Resp. Ex. 9 at 1. The First DCA reversed the judgment on

Count One and remanded with instructions for the trial court to enter judgment for

sexual battery and resentence accordingly. Resp. Ex. 9. The judgment and sentence

for Count Two was affirmed. Id. The trial court modified Petitioner’s judgment on

Count One to sexual battery and resentenced Petitioner to a fifteen-year term of

imprisonment. Id. at 61-68.

The prosecutor filed a motion in limine to prevent the introduction of the

statements, and the trial court, after hearing argument from counsel, granted

the motion.

Under Florida law, “[s]pecific instances of prior consensual sexual activity

between the victim and any person other than the offender may not be admitted

into evidence in a prosecution under s. 787.06, s. 794.011, or s. 800.04.” §

794.022, Fla. Stat. However,

such evidence may be admitted if it is first established

to the court in a proceeding in camera that such

evidence may prove that the defendant was not the

source of the semen, pregnancy, injury, or disease; or,

when consent by the victim is at issue, such evidence

may be admitted if it is first established to the court in

a proceeding in camera that such evidence tends to

establish a pattern of conduct or behavior on the part

of the victim which is so similar to the conduct or

behavior in the case that it is relevant to the issue of

consent.

Id.

Here, Petitioner has not alleged the applicability of either exception.

Rather, Petitioner alleges that the victim had a motive to lie, which was to

prevent her mother from knowing she engaged in consensual sex. First, this

argument is speculative. Second, there is no indication that the evidence would

have established a pattern of behavior similar to the behavior in this case. The

evidence was irrelevant.

Petitioner relies on McLean v. State, 754 So. 2d 176, 182 (Fla. 2d DCA

2000), and Jones v. State, 577 So. 2d 606, 609 (Fla. 4th DCA 1991). These cases

are distinguishable. In McLean, the key issue was whether the sexual contact

with the victim was consensual. The doctor’s proposed testimony was that the

victim told him she had not had sex in over a year and that in his opinion

someone who had not had sex for a long period of time might experience some

soreness and swelling in the vaginal area after consensual sex. The Second

District Court of Appeal found the testimony relevant to the issue of consent.

In Jones, the Fourth District Court of Appeal found that it “would be

relevant to the victim’s motivation to lie about whether she consented to sex

with appellant to know that her family was extremely unhappy and not

supportive of the results (pregnancy) of other non-marital sexual activity of

their daughter and that the daughter might want to protect her recently revived

relationship with her parents.” 577 So. 2d at 609. The Jones decision did not

involve § 794.022, Fla. Stat.

Here, the victim’s statements were not permitted under § 794.022, and

the fact that the victim made inconsistent statements about her prior sexual

encounters with others was not relevant to whether the sexual contact with

Petitioner was consensual. Since the victim’s statements were not relevant to

the issue of whether the sexual contact was consensual, this case is

distinguishable from McLean and Jones. Notably, “the Sixth Amendment only

protects cross-examination that is relevant.” Jones v. Goodwin, 982 F.2d 464,

469 (11th Cir. 1993) (quoting Wasko v. Singletary, 966 F.2d 1377, 1381 (11th

Cir. 1992)). The victim’s statements “would have neither contradicted nor

impeached anything [the victim] said while on the witness stand.” Id. Therefore,

Petitioner’s Confrontation Clause challenge fails, and the Court finds that the

state appellate court’s adjudication of this claim was neither contrary to, nor an

unreasonable application of, clearly established federal law. Nor was the state

appellate court’s adjudication based on an unreasonable determination of the

facts given the evidence presented in the state court proceedings. As such,

Ground One is denied.

B. Ground Two

Petitioner contends that “the state trial court’s remarks before

pronouncing sentence are reasonably construed as affirmatively punishing

Petitioner Bright for failing to show remorse and for maintaining his innocence,

thus denying due process and fundamentally erring.” Doc. 1 at 6 (emphasis

omitted).

Respondents argue this claim is unexhausted because it was not raised

as a federal claim on direct appeal. Doc. 11 at 35. Alternatively, Respondents

argue that the trial court “was simply ruling on the defense’s request for

mitigation.” Id. at 36.

Petitioner, through counsel, raised this claim on direct appeal, arguing

that the trial court’s statement at sentencing about Petitioner’s lack of remorse

violated his “due process rights.” Resp. Ex. 6 at 55-58. In doing so, Petitioner

cited to and analyzed at least one Florida case discussing the Fifth Amendment.

See id. at 55. The state filed a response, Resp. Ex. 7, and Petitioner filed a

counseled reply, Resp. Ex. 8. The First DCA issued a written opinion per curiam

affirming Petitioner’s conviction and sentence on Count Two but reversing and

remanding his conviction and sentence on Count One. Resp. Ex. 9. As to this

specific claim, the First DCA affirmed without comment. Id. Considering the

record, the Court finds this claim is sufficiently exhausted. Regardless, as

explained below, Petitioner is not entitled to relief on Ground Two.

At sentencing, Petitioner’s counsel sought a downward departure

sentence “based on [Petitioner’s] age, the lack of education, the situation he was

placed in and the consequences at the time. He had no appreciation of the

consequences of this type of activity.” Resp. Ex. 5 at 18-19. The State argued

that Petitioner had not “shown remorse” and failed to present “valid reasons for

the Court to deviate from the guidelines.” Id. at 19-20, 21.

In response to the request for a downward departure, the trial court

stated:

With regard to the Defense’s request to deviate from

the guidelines, that is denied. I don’t believe any one of

the three grounds cited are applicable. I don’t believe

Mr. Bright is too young to appreciate the consequences

of his actions; in fact, he’s very articulate here. His

letter is extremely articulate. Quite frankly, based on

the writing and his statements, it would indicate to me

that he is very bright beyond the years that he actually

went to school, grades that he completed. I would not

find that this was something that was unsophisticated

or an isolated – unsophisticated or an isolated incident

for which he has shown remorse, that hasn’t been

demonstrated. And the jury clearly found that the

victim was not a willing participant. Had they found

that, then, I suppose, they would have found that there

was consensual sexual act or acts and Mr. Bright would

have been found not guilty or – well, just not guilty. I

will find that he in – that he is a sexual predator.

And, Mr. Bright, it was clear to me that woman

was absolutely traumatized, demoralized, greatly

incapable of reciting what took place. And the people

that saw her afterwards, when she ran from that shed

naked to their house, clearly testified as to her state,

which corroborated, I believe her testimony and her

account of what took place. It is despicable and there’s

really not much else to say about it.

So I’m going to sentence you to life in prison on

both counts I and II.

Id. at 23-24.

“[T]he Constitution forbids the exaction of a penalty for a defendant’s

unsuccessful choice to stand trial.” Smith v. Wainwright, 664 F.2d 1194, 1196

(11th Cir. 1981). Here, the trial court’s oral pronouncement was a denial of the

downward departure and was not a ruling based on impermissible

considerations. The remark about Petitioner’s lack of remorse was made to

address his counsel’s request for a downward departure. See Roop v. State, 162

So. 3d 1165, 1166 (Fla. 2d DCA 2015) (although a trial court may not impose a

sentence based on the defendant’s failure to accept responsibility and lack of

remorse, “it is evident that the trial court did not base its sentence on these

factors but on the senselessness of and lack of justification for the killing”).

The Court addresses the claim in accordance with the deferential

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

review of the record, the Court finds that the state appellate court’s adjudication

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

established federal law. Nor was the state appellate court’s adjudication based

on an unreasonable determination of the facts given the evidence presented in

the state court proceedings. As such, Ground Two is denied.

C. Ground Three

Petitioner contends that the “state trial court abandoned its neutral role

by allowing its strong feelings of antipathy towards Petitioner Bright [to] affect

its sentencing decision.” Doc. 1 at 8. Petitioner states that the trial court’s

“strong language – ‘I believe her testimony and her account of what took

place.[5] It is despicable’ – evinced a favorable bias towards the alleged victim

and a strong antipathy towards Petitioner Bright.” Id. at 9.

5 This particular quote is taken out of context. The judge stated: “And the people that

saw her afterwards, when she ran from that shed naked to their house, clearly testified

as to her state, which corroborated, I believe her testimony and her account of what

took place.”

Respondents argue this claim is unexhausted because it was not raised

as a federal claim on direct appeal. Doc. 11 at 37. Alternatively, Respondents

argue that the trial court’s comments “were in response to the defense request

for a greatly mitigated sentence, based on an assertion that [the victim] was a

willing participant. Thus, there was no ‘antipathy’ toward Petitioner that would

have blinded the judge.” Id. at 38.

Petitioner, through counsel, raised this claim on direct appeal in terms of

state law only. There is no indication in Petitioner’s initial brief on appeal that

he was raising a federal claim. Therefore, this claim is unexhausted and

procedurally barred. Petitioner has failed to show cause to excuse the

procedural default or resulting prejudice. Nor has Petitioner shown that a

fundamental miscarriage of justice would result if the Court declines to address

the claim on the merits. As such, Ground Three is due to be denied.

D. Ground Four

Petitioner contends that the “life sentence without the possibility of

parole is unconstitutionally cruel and unusual.” Doc. 1 at10. He argues that “the

state trial court abused its discretion in not imposing a sentence that took into

consideration Petitioner Bright’s adolescent characteristics and reflected a

proportional analysis that was consistent with the Eighth Amendment.” Id. at

14. He contends that his sentence violates Graham v. Florida, 560 U.S. 48

(2010), and Miller v. Alabama, 567 U.S. 460 (2012). While recognizing that he

was not a juvenile at the time of the offenses (he was 19 years old), Petitioner

argues that “the rationale in Graham[,] should be extended to all teenagers –

not just those who are under the age of eighteen.” Doc. 14 at 3. This claim was

raised in Petitioner’s direct appeal. The First DCA issued a written opinion per

curiam affirming Petitioner’s conviction and sentence on Count Two but

reversing and remanding his conviction and sentence on Count One. Resp. Ex.

9. As to this specific claim, the First DCA affirmed without comment. Id. The

Court addresses the claim in accordance with the deferential standard for

federal court review of state court adjudications.

In Graham, the Supreme Court held that “the Constitution prohibits the

imposition of a life without parole sentence on a juvenile offender who did not

commit homicide.” 560 U.S. at 75. Miller held that “mandatory life without

parole for those under the age of 18 at the time of their crimes violates the

Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” 567 U.S.

at 465. “Neither Graham nor Miller have been extended to adult offenders.”

Humphrey v. Stewart, No. 2:15-cv-12638, 2015 WL 4967152, at *4 (E.D. Mich.

Aug. 20, 2015); see also Hill v. Whitmer, No. 10-14568, 2020 WL 2849969, at *4

(E.D. Mich. June 2, 2020) (“[B]ecause the holdings in Graham and Miller were

limited to juvenile offenders, the entitlement to a meaningful opportunity for

release is unique to juveniles and does not extend to adult offenders.”); Marshall

v. State, 277 So. 3d 1149, 1151 (Fla.1st DCA 2019) (“[C]ourts have consistently

declined to extend the holdings of Graham and Miller and the applicability of

the juvenile sentencing statutes to offenders eighteen years of age or older.”).

Petitioner admits that he “is not a juvenile offender, and he has not been

convicted of committing a homicide.” Doc. 1 at 10. Petitioner requests that the

Court extend Graham “to teenagers older than seventeen” based on state court

decisions from Illinois, Kentucky, and Washington. Doc. 14 at 14. On habeas

review, however, the Court finds that the state appellate court’s adjudication of

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

established federal law. Nor was the state appellate court’s adjudication based

on an unreasonable determination of the facts given the evidence presented in

the state court proceedings. See Termitus v. Sec’y, Dep’t of Corr., No. 6:22-cv-

345-CEM-LHP, 2023 WL 4052269, at *3 (M.D. Fla. June 16, 2023) (finding that

the petitioner’s “argument that Miller should be extended to young adults,

without citation to any binding precedent, is insufficient to demonstrate that

the state court’s decision rejecting his claim was contrary to, or involved an

unreasonable application of, clearly established federal law, as determined by

the Supreme Court of the United States”). As such, Ground Four is denied.6

6 While the Court has concerns about sentencing a 19-year-old to life in these

circumstances, there are no grounds for habeas relief under AEDPA.

E. Ground Five

Petitioner argues that his trial counsel was ineffective for failing to object

when the trial court, after hearing his counsel tell the jury during opening

statements they must presume the sexual encounter was consensual, instructed

the jury that there was no presumption the sexual encounter was consensual.

Doc. 1 at 15-16.

Petitioner, through counsel, raised this claim in his Florida Rule of

Criminal Procedure 3.850 motion. The state court denied it, finding as follows:

Defendant claims counsel was ineffective for

failing to object to the Court’s interjection into the

proceedings. Specifically at issue is the Court’s sua

sponte instruction to the jury explaining that in a

sexual battery case, there is no presumption that a

sexual encounter is consensual. This instruction

followed defense counsel’s opening statement to the

jury stating they were to begin with the presumption

that the sexual encounter between Defendant and [the

victim] was consensual. Defendant alleges that the

Court’s instruction was erroneous, confused the jury,

and harmfully negated his defense. Defendant claims

that had counsel objected to the instruction, either the

instruction would not have been given or the issue

would have been preserved for appeal. Absent

counsel’s alleged deficiency, Defendant claims the

outcome of the proceeding would have been different

or; alternatively, that counsel’s ineffectiveness

affected the fairness and reliability of the proceeding,

thereby undermining confidence in the outcome.

It is the trial judge’s responsibility to ensure

“that the jury is fully and correctly instructed as to the

applicable law.” Foster v. State, 603 So. 2d 1312, 1315

(Fla. 1st DCA 1992). It follows that where counsel

misstates the law or makes otherwise improper

comments, the trial judge should correct same,

whether in response to a party’s objection or of the

court’s own accord. See Brooks v. State, 762 So. 2d 879,

899 n.26 (Fla. 2000) (trial court’s sua sponte

interruption of prosecutor’s closing argument and

curative instruction dealt appropriately with improper

reference to biblical commandment).

Here, during defense counsel’s opening

statement, counsel twice stated to the jury that they

were to begin with the presumption that the sexual

encounter between Defendant and [the victim] was

consensual. (Ex. F at 271:21-22; 274:25-275:4.)

Immediately following this opening statement, the

Court called a sidebar with both parties. (Ex. F at 275-

76.) The Court reminded counsel that consent was an

element of the charged offenses, but there was no

presumption of consent that the State would have to

overcome. (Ex. F at 275.) Defense counsel was unable

to provide the Court with a sufficient legal basis for his

assertion. (Ex. F at 276.) Thereafter, the Court

instructed the jury that:

[T]here is one presumption, and that is the

presumption [] that the defendant is

innocent until it’s overcome by the

evidence to the exclusion of and beyond a

reasonable doubt. There is not a

presumption as to whether or not this was

a consensual encounter. The presumption

does not start that it was. An element of

the offense is the [State] has to prove that

it was not consensual, but there is only one

presumption at the beginning of the trial,

and that is just that the defendant is

innocent until or unless it’s overcome by

the evidence.

(Ex. F at 276.)

A plain reading of the dialogue indicates that the

Court did not abandon its neutral role in sua sponte

correcting defense counsel’s misstatement of the law.

Rather, the Court fulfilled its responsibility in

correctly instructing the jury as to the applicable law,

i.e. that consent is an element of sexual battery, which

the State has to prove was not given, and that a

defendant is presumed innocent until proven guilty by

the evidence. The Court’s sua sponte instruction was

also consistent with the jury instructions given at the

close of evidence:

[T]o prove the crime of sexual battery

upon a person 12 years of age or older,

with the use of a deadly weapon, the State

must prove the following four elements

beyond a reasonable doubt: First, [the

victim] was 12 years of age or older;

second, Vernord Lavon Bright, the

defendant, committed an act upon [the

victim] in which the sexual organ of the

defendant, Mr. Bright, penetrated or had

union with the vagina of [the victim];

third, Vernord Lavon Bright, in the

process used or threatened to use a deadly

weapon; four, the act was done without

the consent of [the victim].

(Exs. F at 676; G.) Instructions on lesser included

offenses were also given, which likewise required the

State to prove the sexual act was committed without

[the victim’s] consent or was done against her will.

(Exs. F at 676-89; G.) Because the Court’s sua sponte

instruction was not improper, counsel cannot be

deficient for failing to object to same. See

Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010)

(finding counsel cannot be deemed ineffective for

failing to make a meritless objection).

Defendant has also failed to show he was

prejudiced by counsel’s failure to object to the Court’s

interjected instruction and for failing to argue that the

Court, by interjecting, abandoned its neutral role.[]

See Gonzalez v. State, 990 So. 2d 1017, 1027 (Fla.

2008) (counsel’s failure to object when trial judge

instructed jury regarding mitigating and aggravating

circumstances did not prejudice defendant where

instruction did not change burden of proof and

instruction was a correct statement of the law).

Because the Court’s instruction was an accurate

statement of the law which did not shift the burden of

proof, the Court maintained its neutrality, and

confidence in the outcome of the trial is not

undermined.

The cases upon which Defendant relies in

support of his claim that the Court abandoned its

neutral role are materially distinguishable in that

they involved situations where the trial judge actively

aided the prosecutor, or prompted the prosecution to

either present certain evidence or take certain actions.

See Rodgers v. State, 966 So. 2d 462, 464 (Fla. 1st DCA

2007) (in sua sponte amending defective information,

trial judge transformed himself into role of

prosecutor’s auditor); Williams v. State, 901 So. 2d

357, 359 (Fla. 2d DCA 2005) (trial court departed from

judicial neutrality by prompting state, during trial, to

alter allegation in first count of sex offense to fit proof

of offense); Evans v. State, 831 So. 2d 808, 811 (Fla.

4th DCA 2002) (trial court suggested that prosecution

inquire into immigration status of defendant); Sparks

v. State, 740 So. 2d 33, 36 (Fla. 1st DCA 1999) (trial

court suggested impeachment evidence to

prosecution).

In the instant case, the Court’s interjection into

the proceedings did not constitute an abandonment of

its neutral role as the Court neither advanced the

position of either party nor impeded Defendant from

presenting his defense of consent. Rather, upon

hearing defense counsel’s misstatement of the law, the

Court, after explaining its concern to counsel and

giving counsel the opportunity to provide support for

his statement, proceeded to properly instruct the jury

as to the applicable law. Moreover, the Court’s

instruction did not interfere with Defendant’s defense

of consent. The trial transcript clearly shows counsel

pursued the issue of consent throughout trial. (Ex. F.)

Further, during closing argument, counsel argued

multiple times that the State failed to present

evidence that the sexual encounter was not

consensual. (Ex. F at 634; 647; 652-3; 656-57.) Because

the Court’s interjection into the proceedings did not

constitute an abandonment of its neutral role or

impede Defendant from advancing his defense of

consent, Defendant has failed to show he was

prejudiced by counsel’s failure to object to the Court’s

interjected instruction regarding the legal

presumption applicable in this case.

. . . .

For the foregoing reasons, Ground One is

denied.

Resp. Ex. 11 at 27-31 (footnote omitted). Petitioner appealed, Resp. Ex. 12, and

the First DCA per curiam affirmed the state court’s denial without issuing a

written opinion, Resp. Ex. 16.

The Court addresses the claim in accordance with the deferential

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

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

decision was neither contrary to, nor an unreasonable application of, Strickland

and was not based on an unreasonable determination of the facts given the

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

denied.

F. Ground Six

According to Petitioner, although the victim testified at trial that the

sexual encounter was not consensual, she “claimed in one statement that she

‘blacked out’ on the date in question and had no memory of the encounter.” Doc.

1 at 21. Petitioner argues that “either [the victim] remembers the encounter

and remembers it being nonconsensual or she does not remember the incident—

but both versions cannot be true.” Id. at 22. Petitioner contends that his trial

counsel was ineffective for failing to properly impeach the victim with her prior

inconsistent statements. Id.

Petitioner, through counsel, raised this claim in his Rule 3.850

proceeding. The state court denied it, finding as follows:

Defendant claims counsel was ineffective for

failing to impeach [the victim] with several prior

inconsistent statements. Defendant specifically notes

one prior statement by [the victim] that she blacked

out and had no memory of the sexual encounter.

Defendant alleges this was not consistent with her

trial testimony that she did not consent to the

encounter. Defendant claims that had counsel

properly impeached [the victim], there is a reasonable

probability that the result of the trial would have been

different.

First, Defendant’s argument is premised on

faulty logic. In his Motion, Defendant states that

“clearly the alleged victim’s prior statements were in

conflict with her trial testimony – either she

remembers the encounter and remembers it being

nonconsensual or she does not remember the incident

– but both versions cannot be true.” However,

Defendant fails to consider [the victim’s] statements,

made both before and during trial, which indicate she

remembered some of the encounter, specifically,

waking up to Defendant having nonconsensual

intercourse with her. (Ex. F at 364-67; 405-07; 423-24.)

Second, counsel cannot be deemed ineffective for

failing to impeach a witness with every inconsistent

statement; “[n]o prejudice result[s] from counsel’s

failure to present cumulative evidence of inconsistent

statements.” Green v. State, 975 So. 2d 1090, 1104

(Fla. 2008) (citing Maharaj v. State, 778 So. 2d 944,

957 (Fla. 2000)) (finding counsel was not ineffective for

failing to impeach witness with one statement where

counsel impeached witness with other inconsistent

statements).

Here, the record shows counsel did impeach [the

victim] with specific inconsistent statements, as well

as calling her credibility into question throughout

trial. For example, in his opening statement, counsel

pointed out that the initial story [the victim] provided

to authorities was that the last thing she recalled

seeing before blacking out was the clock in the car

saying 10:00. (Ex. F at 273.) Contrasting this prior

statement was testimony elicited by counsel at trial

that [the victim] did not think the car she was riding

in had a clock:

Q: Do you remember telling anybody

that the last thing you remember is seeing

the clock in the car being at 10:00?

A: I didn’t see a clock in the car.

Q: Okay. So you never saw a clock in

the car?

A: No, sir.

Q: But you don’t remember ever

telling anyone that you saw a clock in the

car?

A: No.

Q: Okay. Do you remember telling

the people at CPT, when you went down to

do the examination, do you remember

telling them the last thing you remember

was 10:00?

A: No, sir.

(Ex. F at 407.) Counsel also elicited testimony from

[the victim] that the last thing she remembered before

she blacked out was sitting on some steps behind a

house after getting out of the car. (Ex. F at 406-07.)

Later, counsel questioned witness, Kristi

Prendergast, advanced registered nurse with Child

Protection Team (CPT), regarding the history [the

victim] provided during her medical examination:

Q: Right. And did she tell you that

10:00 was the last thing she remembered?

A: Yes, she did.

(Ex. F at 452.) Counsel also questioned Jacksonville

Sheriff’s Office Detective, Shannon Fusco, regarding

the history provided by [the victim] during her

interview:

Q: All right. And she described to

you that the last thing she remembered

was the clock in the car that she was

riding in saying 10:00, and that’s as far as

she could remember the night.

A: Yes.

Q: And that’s the car that Whack

Daddy was driving?

A: Yes.

Q: And she was certain that it was a

clock in that car that said 10:00.

A: Yes. The clock in the car, yes.

Q: And then, she doesn’t remember

ever getting out of the car.

A: Not when I spoke to her, no.

Q: And the next thing she

remembers is waking up in the garage or

the shed.

A: That’s correct.

(Ex. F at 584.) Thus, the record demonstrates counsel

did impeach [the victim] with a prior inconsistent

statement.

Additionally, throughout the trial, counsel

called [the victim’s] credibility into question. For

example, counsel questioned [the victim] whether she

remembered asking Defendant’s friend, “Whack

Daddy,” to take her home. [The victim] testified she

did remember asking him to take her home and

recalled being outside of the car leaning over the

driver’s side window when this occurred. (Ex. F at 402-

03.) [The victim’s] credibility was called into question

when counsel later asked Carlos “Whack Daddy”

Ousley, if [the victim] told him she wanted to go home.

Ousley testified that at one point, he was alone in the

car with [the victim] and asked her if she needed a ride

home, but [the victim] declined the offer. (Ex. F at

599.) Ousley further testified that after [the victim] got

out of the car, she and Defendant were talking to him

through his driver’s side window. He asked [the

victim] if she was alright and if she was staying there

with Defendant, to which she responded, “yeah.” (Ex.

F at 599.)

Finally, in his closing argument, counsel again

reminded the jury of the inconsistencies in [the

victim’s] testimony and expressly questioned her

credibility: “There is nothing, nothing that they can

say that will take away the fact that it is [the victim’s]

credibility that is at stake here, based on her

statements and her statements alone . . . .” (Ex. F at

659.)

Accordingly, the record shows it would have

been clear to the jury from counsel’s opening

statement, the totality of [the victim’s] testimony, the

contrasting testimony given by other witnesses, and

counsel’s closing argument, that [the victim’s]

credibility was at issue and that [the victim] had made

statements prior to trial that were inconsistent with

the testimony she gave during trial. Assuming,

arguendo, that counsel should have done more to

impeach [the victim], Defendant still cannot establish

prejudice. Even if trial counsel was deficient in failing

to impeach [the victim’s] testimony by showing each

and every inconsistency, such is insufficient to

undermine confidence in the guilty verdict.

Consequently, Ground Two is denied.

Resp. Ex. 11 at 31-34. Petitioner appealed, Resp. Ex. 12, and the First DCA per

curiam affirmed the state court’s denial without issuing a written opinion, Resp.

Ex. 16.

The Court addresses the claim in accordance with the deferential

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

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

decision was neither contrary to, nor an unreasonable application of Strickland,

and was not based on an unreasonable determination of the facts given the

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

denied.

G. Ground Seven

Petitioner contends that his trial counsel was ineffective for “failing to

object to the chemist’s testimony about the symptoms from GHB drug ingestion

and questions to the chemist, after the state trial court had earlier ruled that

this testimony was prohibited.” Doc. 1 at 23. Petitioner alleges that the trial

court granted his motion in limine, which prohibited the State from introducing

the chemist’s (Carol Seagle) opinion regarding GHB ingestion symptoms and

limited her testimony to the results of the victim’s urine test. Id. Petitioner

states that during the trial, the State proffered Seagle’s testimony regarding

the victim’s cocaine test results, and the trial court then ruled Seagle could not

testify about cocaine but could testify the victim was tested for GHB and none

was found. Id.

Petitioner, through counsel, raised this claim in his second Rule 3.850

motion, and it was denied:

Defendant alleges counsel was ineffective for

failing to object to testimony by the chemist and

questions to the chemist, specifically regarding the

symptoms of GHB ingestion. Defendant claims prior to

trial, the Court granted his motion in limine which

prohibited the State from introducing the chemist, Ms.

Seagle’s opinion regarding GHB ingestion symptoms

and limited her testimony to the results of the victim’s

urine test. Defendant states during the trial, the State

proffered Ms. Seagle’s testimony regarding cocaine

test results, and the Court then ruled Ms. Seagle could

not testify regarding cocaine, but could testify she

tested for GHB and found none. Defendant alleges the

State did not adhere to the Court’s ruling. Had counsel

objected, Defendant contends there is a reasonable

probability the jury would have returned not guilty

verdicts.

The record refutes Defendant’s allegations.

Notably, Defendant’s characterization of the content of

the motion in limine and the Court’s ruling on it is

incorrect. The motion in limine requests Ms. Seagle’s

testimony regarding the testing for GHB be prohibited

until a ruling on her qualifications is made; the motion

makes no mention of her testimony regarding the

symptoms of GHB ingestion. (Ex. F.) At the hearing on

the motion in limine, the judge ruled any testimony

regarding GHB and cocaine was prohibited, unless

something were to occur at trial that would require a

revised ruling. (Ex. G at 13, 26.)

At trial, based on defense counsel’s opening

argument and testimony he elicited from witnesses

regarding the victim’s memory problems and/or

inconsistencies, the State argued Ms. Seagle’s

testimony regarding the GHB test and results should

be presented to the jury. (Ex. H at 431.) Defense

counsel argued his objection, and the Court overruled,

allowing the State to “put it on.” (Ex. H at 431-33.)

Thereafter, the only unresolved issue regarding GHB

was whether Ms. Seagle could testify regarding the

length of time GHB could remain present in a person’s

system. (Ex. H at 433.) Ms. Seagle’s testimony

regarding the symptoms of GHB ingestion was neither

discussed nor prohibited. (Ex. H at 482-91.)

The record shows the Court did not rule that Ms.

Seagle could not testify about the symptoms of GHB

ingestion, contrary to Defendant’s allegation. Any

objection by counsel that Ms. Seagle had been

prohibited from so testifying would have been

meritless. Counsel cannot be deemed ineffective for

not making a meritless objection. See Schoenwetter v.

State, 46 So. 3d 535, 546 (Fla. 2010). Defendant is not

entitled to relief on Ground One.

Resp. Ex. 17 at 21-22. Petitioner appealed, Resp. Ex. 18, and the First DCA per

curiam affirmed the state court’s denial without issuing a written opinion,

Resp. Ex. 19.

The Court addresses the claim in accordance with the deferential

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

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

decision was neither contrary to, nor an unreasonable application of Strickland,

and was not based on an unreasonable determination of the facts given the

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

denied.

H. Ground Eight

Petitioner contends that his trial counsel was ineffective for “failing to

request a mistrial following either (1) the alleged victim’s subsequent testimony

after she initially refused to testify and/or (2) the prosecutor’s closing argument

highlighting this point.” Doc. 1 at 24. Petitioner alleges that at the beginning of

the trial, the State called the victim as a witness, but she refused to answer

questions and was excused as a witness. Id. at 24-25. The victim was later

recalled as a witness, and “she provided damaging testimony to” Petitioner. Id.

at 25. According to Petitioner, during closing argument, the prosecutor used the

victim’s initial refusal to testify to bolster her credibility. Id.

Petitioner, through counsel, raised this claim in his Rule 3.850

proceeding. The state court denied it, finding as follows:

a. Failing to request a mistrial after the

victim’s initial testimony

The record indicates that during the victim’s

testimony, she did not have an emotional outburst;

rather, she became increasingly nonresponsive to the

State’s questioning. (Ex. H at 277-84.) After a series of

questions to which [the victim] did not verbally

respond, the judge intervened, asking the jury to exit

the courtroom for a few minutes. (Ex. H at 284.) The

judge suggested allowing the victim to take a break

and resume testifying later. (Ex. H at 284-85.) When

the jury returned, the judge briefly informed them [the

victim] would be taking a break and they would be

moving on to the next witness. (Ex. H at 286.) [The

victim] completed her testimony later that day. (Ex. H

at 357.)

Defendant cannot show prejudice as the victim’s

reticence was not so prejudicial as to vitiate the entire

trial. See Thomas v. State, 748 So. 2d 970, 980 (Fla.

1999) (holding defendant was not entitled to mistrial

on ground that state’s chief witness suffered emotional

breakdown after state asked her to identify defendants

at trial, where immediately after breakdown, judge

stopped trial and removed jury and did not resume

trial until witness had gathered herself completely);

Hardwick v. Dugger, 648 So. 2d 100, 104-05 (Fla. 1994)

(finding no prejudice where counsel did not move for

mistrial after victim’s cousin made an obscene gesture

toward defendant in presence of jury and judge

responded appropriately). Accordingly, had counsel

moved for a mistrial, his request would not have been

granted. “Trial counsel cannot be deemed ineffective

for failing to raise meritless claims or claims that had

no reasonable probability of affecting the outcome of

the proceeding . . . .” Teffeteller v. Dugger, 734 So. 2d

1009, 1023 (Fla. 1999).

b. Failing to request a mistrial after the

prosecutor’s closing argument

Defendant contends the prosecutor made

statements in closing argument that constituted

improper bolstering of the victim’s credibility.

“Improper prosecutorial ‘vouching’ for the credibility of

a witness occurs where a prosecutor suggests that she

has reasons to believe a witness that were not

presented to the jury, or, stated differently, where the

prosecutor implicitly refers to information outside the

record.” Thompson v. State, 273 So. 3d 1069, 1077 (Fla.

1st DCA 2019) (quoting Jackson v. State, 89 So. 3d

1011, 1018 (Fla. 4th DCA 2012)). “However, an

attorney is allowed . . . to argue credibility of witnesses

or any other relevant issue so long as the argument is

based on the evidence.” Miller v. State, 926 So. 2d

1243, 1254-55 (Fla. 2006).

Defendant takes issue with the prosecutor’s

following statements:

When I was questioning her one of

the things you should weigh is her

demeanor, and any time I asked her

anything kind of directly about

[Defendant], she would just shift her eyes.

She could not even say his name, she

couldn’t look at him, she was terrified. If

you want to believe, and in order for you

to believe that this girl came in and made

this up, wouldn’t it make more sense for

her to go, oh, he did it, he did it, and these

are all of the things he did, and she would

be all about getting him in trouble, telling

everything that he did. She didn’t want to

say anything. We had to drag it out of her.

That’s the demeanor she had. She didn’t

want to do this, she was terrified,

traumatized and terrified, that was [the

victim] on the stand, and that’s the one

that’s been that way since he encountered

her.

(Ex. H at 674.)

These statements do not constitute improper

bolstering of [the victim’s] credibility as the prosecutor

“neither expressed personal belief nor referred to

information or knowledge outside the record.”

Thompson v. State, 273 So. 3d at 1077. Rather, the

prosecutor explained to the jurors why they should

believe [the victim] and encouraged them to rely on

their own impressions as to [the victim’s] credibility

based on her demeanor on the stand and the substance

of her trial testimony. See id.; Williamson v. State, 994

So. 2d 1000, 1013 (Fla. 2008); Jackson v. State, 89 So.

3d at 1018-19.

Since the prosecutor’s statements were not

improper, a motion for mistrial based on same would

not have been granted. Even if a portion of this

statement could be construed as referring to

information outside the record, it was not so

prejudicial as to vitiate the entire trial. Therefore,

counsel was not deficient for not filing a motion for

mistrial, as the motion would have been meritless. See

Teffeteller, 734 So. 2d at 1023.

For the foregoing reasons, Defendant is not

entitled to relief on Ground Two.

Resp. Ex. 17 at 24-25. Petitioner appealed, Resp. Ex. 18, and the First DCA per

curiam affirmed the state court’s denial without issuing a written opinion,

Resp. Ex. 19.

The Court addresses the claim in accordance with the deferential

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

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

decision was neither contrary to, nor an unreasonable application of Strickland,

and was not based on an unreasonable determination of the facts given the

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

denied.

I. Ground Nine

Petitioner contends that the “cumulative effect of defense counsel’s errors

deprived Petitioner Bright of a fair trial.” Doc. 1 at 26. This claim was raised in

Petitioner’s counseled second Rule 3.850 motion. The trial court denied the

claim:

Claims of cumulative error do not warrant relief where

each individual claim of error is either ‘meritless,

procedurally barred, or [does] not meet the Strickland

standard for ineffective assistance of counsel.’

Schoenwetter, 46 So. 3d at 562 (quoting Israel v. State,

985 So. 2d 510, 520 (Fla. 2008)). Having found that

Defendant’s individual claims are either meritless or do

not meet the Strickland standard of ineffective

assistance of counsel, Defendant is not entitled to relief

and Ground Three is denied.

Resp. Ex. 17 at 25.

As explained herein, none of Petitioner’s individual claims warrant relief;

thus, there is nothing to accumulate. See Morris v. Sec’y, Dep’t of Corr., 677

F.3d 1117, 1132 (11th Cir. 2012). The alleged errors, neither individually nor

cumulatively, deprived Petitioner of a fair trial or due process. Therefore, the

Court finds that the state court’s decision was neither contrary to, nor an

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

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

28 U.S.C. § 2254(d). Ground Nine is denied.

Accordingly, it is

ORDERED:

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

with prejudice.

2. If Petitioner appeals, 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.’

3. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 224 day of

September, 2023.

ed Gmothy J. Corrigan

Ww. TIMOTHY J. CORRIGAN

United States District Judge

OrlP-2/JAX-3 9/15

C:

Counsel of Record

Vernord Lavon Bright, II], #J54267

7 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, Petitioner “must demonstrate that reasonable jurists

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

wrong,’ Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529

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

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

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

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

39