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

> District Court, M.D. Florida · September 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10114043

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10114043

## How later opinions describe it (automated extraction)

- noting “that Boerckel applies to the state collateral review process as well as the direct appeal process.”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10114043. Public record. Not legal advice.