# Batson v. Secretary, Florida Department of Corrections (St. Johns County)

> District Court, M.D. Florida · September 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10114082

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 21, 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/10114082

## 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

ROBERT DARREL BATSON,

Petitioner,

v. Case No. 3:20-cv-538-TJC-JBT

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,

Respondents.
________________________________

ORDER
I. Status
Petitioner, an inmate of the Florida penal system, is proceeding on a pro
se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1), as
supplemented (Docs. 14-1 to 14-29).1 He challenges a 2018 state court (St. Johns
County, Florida) judgment of conviction for possession of a firearm by a
convicted felon. He is serving a 40-year term of imprisonment. Respondents
filed a Response (Doc. 9) with exhibits (Docs. 10-1 to 10-4; Resp. Ex.). Petitioner
filed an Amended Reply (Doc. 26). This case is ripe for review.2

1 Petitioner filed an “amended petition” (Docs. 14-1 to 14-29), in which he did not
change the substance of his claims but simply added citations to the record. See Order
(Doc. 19).
2 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need
for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318
II. Governing Legal Principles
A. Standard of Review

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). “‘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,

(11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th
Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the
record refutes the applicant’s factual allegations or otherwise precludes habeas relief,
a district court is not required to hold an evidentiary hearing.” Id. The Court finds that
“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.
562 U.S. 86, 100 (2011). Where 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.” Richter, 562 U.S. at 101 (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 that are available for challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”
every issue raised in his federal petition to the state’s highest court, either on
direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351
(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners
must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); 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 (1995) (per curiam) (quoting
Picard v. Connor, 404 U.S. 270, 275 (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, 513 U.S. at 365-66; O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citations modified).
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, 501 U.S. at 747-48;
Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977). A state
court’s invocation of a procedural rule to deny a
prisoner’s claims precludes federal review of the claims
if, among other requisites, the state procedural rule is
a nonfederal ground adequate to support the judgment
and the rule is firmly established and consistently
followed. See, e.g., Walker v. Martin, 131 S. Ct. 1120,
1127-28 (2011); Beard v. Kindler, 130 S. Ct. 612, 617-
18 (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.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012) (internal citations modified). Thus,
procedural defaults may be excused under certain circumstances.
Notwithstanding that a claim has been procedurally defaulted, a federal court
may still consider the claim if a state habeas petitioner can show either (1) cause
for and actual prejudice from the default; or (2) a fundamental miscarriage of
justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). For a petitioner to
establish cause 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 Murray
v. Carrier, 477 U.S. 478, 488 (1986). 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).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (internal citations
modified).
In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the
continued incarceration of one who is actually innocent, otherwise would result.
The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive
consideration on the merits of his procedurally
defaulted claim. “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal
habeas court may grant the writ even in the absence of
a showing of cause for the procedural default.” Carrier,
477 U.S. at 496. “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 (internal citations modified). “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 the effective
assistance of counsel. That right is denied when a defense attorney’s
performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)
(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington,
466 U.S. 668, 687 (1984)). Courts employ a two-part test when reviewing
ineffective assistance of counsel claims. See Strickland, 466 U.S. at 687.

To establish deficient performance, a person
challenging a conviction must show that “counsel’s
representation fell below an objective standard of
reasonableness.” 466 U.S. at 688. A court considering
a claim of ineffective assistance must apply a “strong
presumption” that counsel’s representation was
within the “wide range” of reasonable professional
assistance. Id. at 689. The challenger’s burden is to
show “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687.

With respect to prejudice, a challenger must
demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. It is not enough
“to show that the errors had some conceivable effect on
the outcome of the proceeding.” Id. at 693. Counsel’s
errors must be “so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at
687.

Richter, 562 U.S. at 104 (internal citations modified).3
There is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward, 592 F.3d at 1163. Both prongs of the
two-part Strickland test must be satisfied to show a Sixth Amendment
violation; thus, “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)). “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.” Strickland, 466 U.S. at
697.
A state court’s adjudication of an ineffectiveness claim is afforded great

deference.
“[T]he standard for judging counsel’s representation is
a most deferential one.” Richter, 562 U.S. at 105. But
“[e]stablishing that a state court’s application of

3 This two-part Strickland standard also governs a claim of ineffective assistance of
appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).
“Appellate counsel has no duty to raise every non-frivolous issue and may reasonably
weed out weaker (albeit meritorious) arguments. Generally, only when ignored issues
are clearly stronger than those presented, will the presumption of effective assistance
of counsel be overcome.” Id. (internal quotations and citations omitted). To satisfy the
prejudice prong, a petitioner must show a reasonable probability that “but for the
deficient performance, the outcome of the appeal would have been different.” Black v.
United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore v. McNeil, 575
F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the neglected claim
would have a reasonable probability of success on appeal”).
Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland
and § 2254(d) are both highly deferential, and when
the two apply in tandem, review is doubly so.” Id.
(citations and quotation marks omitted). “The
question is not whether a federal court believes the
state court’s determination under the Strickland
standard was incorrect but whether that
determination was unreasonable - a substantially
higher threshold.” Knowles v. Mirzayance, 556 U.S.
111, 123 (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.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (internal
citations modified). In other words, “[i]n addition to the deference to counsel’s
performance mandated by Strickland, the AEDPA adds another layer of
deference--this one to a state court’s decision--when we are considering whether
to grant federal habeas relief from a state court’s decision.” Rutherford v.
Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such, “[s]urmounting
Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,
371 (2010).
III. Analysis
In its answer brief filed during Petitioner’s direct appeal, the state
provided the following summary of the trial court proceedings:
Batson was charged by information and
amended information with one count of possession of
a firearm by a convicted felon, one count of
aggravated assault and one count of driving while
license canceled, suspended or revoked. The offenses
were severed for trial purposes. After Batson was
convicted on the charge of possession of a firearm by
a convicted felon, the State[] nolle prossed the
remaining two charge[s].

. . . .

Prior to the start of trial, Batson filed multiple
motions to discharge his trial counsel. His trial
counsel likewise filed several motions suggesting a
conflict of interest.

Batson withdrew his first motion and the trial
judge found there was no conflict of interest. During
the June 6, 2018, hearing, the trial judge stated that
he attempted to conduct a Nelson hearing, but Batson
would not discuss what trial counsel was not doing
and the trial judge was unable to conduct a full
inquiry. A third Nelson hearing was held on August
15, 2018. After hearing from both Batson and his trial
counsel, the trial judge ruled that trial counsel was
providing effective assistance of counsel and informed
Batson he could continue with trial counsel, hire his
own lawyer or represent himself. Batson stated he
wanted to represent himself. The trial judge
conducted a further inquiry and determined that
Batson waived his right to counsel.

. . . .

The trial judge informed Batson that he was not going
to continue the case and that the jury would be picked
on the following Monday. Batson stated “[a]nd how
are we going to do that when I haven’t had a chance
to procure my evidence and witnesses and everything
I’m going to need?”

On August 22, 2018, Batson filed a written
motion to continue. During the August 23, 2018,
hearing, Batson mentioned the motion to continue.
Batson stated that his motion to continue was
“pending based on the ability to obtain evidence and
witnesses in my behalf.”[fn] Batson did not bring the
motion up again and did not request that the trial
judge rule on the motion. Batson did not renew his
motion or request a continuance prior to the start of
trial.

fn. The trial judge, after going through each
witness and piece of evidence Batson sought to
introduce at trial, ruled that the evidence and
witnesses were inadmissible.

. . . .

Prior to trial, Batson filed a motion to suppress
seeking to suppress the handgun which fell from his
pants when he was stopped. Batson also filed a
motion to schedule [a] hearing on the motion to
suppress. In the motion, Batson requested the trial
judge to command the presence of Angel Falaney and
Deputy Newman. There is nothing in the record that
Batson attempted to have those witnesses
subpoenaed for the hearing. Prior to the start of the
hearing, Batson stated:

. . .[W]hen I filed the motion for
the request for the hearing on the
motion to suppress, I had asked for
Angel Flaney (phonetic) to be called as a
witness and also Deputy Newman, who
gave a deposition, the only one that I
was supplied with, to be present during
this hearing to testify as to particular
information that was given in the 9-1-1
call and facts that he testified to in his
deposition and the police report itself, so
that’s my whole point, cause she’s
calling Deputy Toth, whose deposition
was taken, but I was never supplied
with, so I have no way of properly
questioning him as to any particular
facts that he may testify to in regards to
the stop, you know. I asked for my sister
to be called here.

According to Batson, his sister was the one who called
911 and gave his description, i.e., the details of the
clothing Batson was wearing. Deputy Newman
conducted the stop. According to the prosecutor,
Deputy Newman was in training and Deputy Toth
was the field training officer.

The trial judge stated that he would consider
the 911 call and that he did not need Batson[’s] sister
to say what was in the 911 call. Batson did not object.

After addressing different issues, Batson stated
he did not have a copy of Deputy Toth’s deposition.
The prosecutor stated she would provide Batson with
a copy and in fact gave him a copy of the deposition
during the hearing on the motion to suppress. Batson
declined the opportunity to go through the deposition
stating “it’s not gonna make probably a whole lot of
difference of my questions.”

At the beginning of [the] hearing on the motion
to suppress, the trial judge stated “[t]his was a
warrantless arrest and warrantless seizure, so the
State has the burden to go forward on this.” The 911
call was played.

Deputy Toth testified that he was the field
training officer and Deputy Newman was driving the
patrol vehicle. Deputy Toth heard a call referencing
an aggravated assault with a deadly weapon at 7:29
pm. According to the dispatch, the person calling in
said Robert Batson pulled a gun and he was a
convicted felon. Deputy Toth pulled Batson up in the
database, saw his picture and that he lived in
Hastings. He then told Deputy Newman to head to
State Road 16 because dispatch said Batson was
taking Lewis Speedway. About 10-15 minutes later,
he observed Batson. Batson was riding a red scooter
and matched the BOLO and the description in the 911
call. Batson matched the picture that Deputy Toth
had pulled up. A traffic stop was initiated. As Batson
got off the scooter, the handgun fell out of his pants.

On cross-examination, Batson questioned
Deputy Toth as to why he went the direction that he
did. He also questioned him about whether Batson
was wearing a black shirt or a multi-colored jacket
when he was stopped.

After hearing argument from both parties, the
trial judge [denied the motion to suppress].

Resp. Ex. 7 at 7-15 (internal record citations omitted).

A. Grounds One and Two

In Ground One, Petitioner argues that his appellate counsel was
ineffective for failing “to challenge on appeal the trial court’s ruling on state’s
motions in limine categorically excluding all of Petitioner’s witness testimony
and evidence.” Doc. 1 at 10 (capitalization and emphasis omitted). In Ground
Two, he contends that his appellate counsel was ineffective for failing “to
challenge trial counsel’s ineffectiveness that was apparent from the face of the
record, where trial counsel failed to pursue a motion to suppress illegally seized
evidence (the gun) used to prosecute the Petitioner.” Id. at 20 (capitalization
and emphasis omitted).
Respondents assert that because Petitioner chose to represent himself at
trial and on appeal, he cannot challenge the effectiveness of counsel. Doc. 9 at

9-10. Indeed, they argue that “when a defendant waives his right to the
assistance of counsel, whether it is trial or appellate counsel, the defendant
waives his right to raise a Strickland claim.” Id. at 10.
Petitioner raised these claims in a pro se petition for writ of habeas corpus

alleging ineffective assistance of appellate counsel. Resp. Ex. 11. The Fifth
District Court of Appeal denied the petition. Resp. Ex. 12 (“[T]he Petition for
Ineffective Assistance of Counsel, filed March 17, 2020, is denied.”).
The Court addresses these claims in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough
review of the record, this Court concludes that the state court’s adjudication of
these claims was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence
presented. Therefore, Grounds One and Two are due to be denied.
Even assuming the state court’s decision is not entitled to deference, these
claims have no merit. On direct appeal, Petitioner was initially represented by

counsel, and counsel filed an initial brief arguing that the trial court erred by
denying Petitioner’s request for a continuance and Petitioner was precluded
from presenting his necessity defense. See Batson v. State of Florida, No. 5D18-
2971 (Fla. 5th DCA Mar. 11, 2019); see also Resp. Ex. 11 (brief marked as
exhibit A attached to Petitioner’s pro se petition alleging ineffective assistance

of appellate counsel). Thereafter, Petitioner filed a pro se motion to discharge
counsel, in which he listed claims that appellate counsel refused to raise, and
he requested leave to file an initial brief. Resp. Ex. 4. The Fifth DCA treated
Petitioner’s pro se motion “as a motion to discharge counsel without cause” and

granted his request. Resp. Ex. 5. The Fifth DCA also struck Petitioner’s
counseled brief and directed him to file an initial brief within 30 days. Id.
Petitioner filed a pro se brief, which included a claim that the trial court erred
by granting the state’s motions in limine precluding presentation of Petitioner’s

evidence and witnesses. Resp. Ex. 6. The state filed an answer brief, Resp. Ex.
7, and Petitioner filed a pro se reply, Resp. Ex. 8. The Fifth DCA per curiam
affirmed Petitioner’s conviction and sentence without issuing a written opinion.
Resp. Ex. 9.

Petitioner cannot claim that his appellate counsel was ineffective when
he chose to proceed pro se on appeal. See Faretta v. California, 422 U.S. 806,
834 n.46 (1975) (“[A] defendant who elects to represent himself cannot
thereafter complain that the quality of his own defense amounted to a denial of

effective assistance of counsel.”); see also United States v. Roggio, 863 F.2d 41,
43 (11th Cir. 1989) (“The appellant clearly had a right to represent himself, but
in exercising that right he cannot now complain that he received ineffective
assistance of counsel at trial.”). Petitioner argues in his Amended Reply that
his decision to proceed pro se on direct appeal “was not based on self desire or

personal preference, but was directly premised upon claims of Ineffective
Assistance of Appellate Counsel that forced him into a pro se status to have his
Constitutional Claims heard when Appellate Counsel failed to raise them in his
brief.” Doc. 26 at 3. Petitioner, however, filed a pro se brief, in which he raised,

inter alia, a trial court error claim regarding the state’s motions in limine
(related to Ground One of the instant Petition). Thus, he raised one of the claims
he asserts appellate counsel was ineffective for failing to raise and the Fifth
DCA adjudicated his claim; thus, Petitioner suffered no prejudice from

appellate counsel’s alleged failure to raise the same claim. As to his other claim
(related to Ground Two of the instant Petition), ineffective assistance of trial
counsel claims are generally not raised on direct appeal; instead, they are raised
in post-conviction proceedings.4 Although Petitioner was not precluded from

including such claim in his pro se initial brief, he did not do so. Regardless, the

4 Petitioner’s appellate counsel advised him that claims of ineffective assistance of trial
counsel are generally raised in a postconviction motion under Florida Rule of Criminal
Procedure 3.850. See Resp. Ex. 11 (letter attached as exhibit C). The trial court’s
docket does not reflect that Petitioner ever filed a Rule 3.850 motion. See State of
Florida v. Batson, No. CF17-1599 (Fla. 7th Cir. Ct.); see also McDowell Bey v. Vega,
588 F. App’x 923, 927 (11th Cir. 2014) (holding that district court did not err in taking
judicial notice of the plaintiff’s state court docket when dismissing § 1983 action);
Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (“[D]ocket sheets are public
records of which the court could take judicial notice.”).
underlying claim – ineffective assistance of trial counsel for failing to file a
motion to suppress the firearm – is meritless, and appellate counsel cannot be

ineffective for failing to raise a meritless issue. Before his trial, Petitioner filed
a pro se motion to suppress the firearm, and the trial court denied the motion
after conducting an evidentiary hearing.5 Even assuming appellate counsel
should have raised this claim on direct appeal, Petitioner suffered no prejudice.

As such, Grounds One and Two are denied.
B. Ground Three
According to Petitioner, the “trial court deprived [him] of his Fourteenth
Amendment rights to due process of law in his suppression hearing by

acquiescing to the State’s discovery violation and depriving Petitioner of his
evidence and witnesses in support of his motion to suppress evidence and by
applying the wrong standard of test as to who has the burden of proof in such
[a] proceeding.” Doc. 1 at 28 (some capitalization and emphasis omitted). He

complains that the trial court denied his request to have two witnesses
(Petitioner’s sister and Deputy Newman) testify at the suppression hearing and
he did not receive a copy of Deputy Toth’s deposition. Id. at 28-32.

5 Appellate counsel’s letter to Petitioner mentioned that the record on appeal did not
contain a pro se motion to suppress or transcript of an evidentiary hearing, but counsel
was mistaken. The transcript was part of the record on direct appeal and the parties
cited to it in their briefs.
Respondents argue that this claim is procedurally defaulted, as Petitioner
failed to object during the trial court proceeding and he “made none of the

arguments he makes now and that he made on direct appeal.” Doc. 9 at 8.
Alternatively, Respondents contend the state court’s adjudication of this claim
is entitled to deference. Id. at 14-21.
Before trial, Petitioner filed a pro se motion to suppress the firearm. The

trial court conducted a hearing on several then-pending motions, including
Petitioner’s motion to suppress. Before addressing the motion to suppress,
Petitioner advised the trial court that he filed a request to have two witnesses
(his sister and Deputy Newman) present to testify at the suppression hearing.

See Resp. Ex. 1 at 1180-81. After considering Petitioner’s reasons for requesting
the testimony of these two witnesses, the trial judge stated: “We don’t need your
sister to say what’s on the 9-1-1 call, because the 9-1-1 call itself says what’s on
the 9-1-1 call under the Best Evidence Rule.” Id. at 1183. As to Deputy Newman,

the state explained that “Deputy Toth was the field training officer directing
Deputy Newman where to go, which is why we’re going to call Deputy Toth.” Id.
at 1182.
At the beginning of the suppression hearing, the trial judge recognized

that “the State has the burden to go forward on this.” Id. at 1197. The state
played the 911 call that Petitioner’s sister made, in which she identified
Petitioner, by name and description, as the suspect. See id. at 1197-98, 1202.
The state also called Deputy Toth, one of the officers who initiated the traffic
stop, and Petitioner cross-examined him. See id. at 1198-1225. During his cross-

examination, Petitioner commented that he had never seen Deputy Toth’s
deposition transcript. Id. at 1205. The trial judge interjected and asked
Petitioner whether he “want[ed] to take a minute” to review it. Id. The state
then provided Petitioner a copy of the deposition transcript, and the trial court

again asked Petitioner whether he wanted time to review it prior to continuing.
Id. Petitioner declined stating, “Well, it’s not gonna make probably a whole lot
of difference of my questions.” Id.
At the conclusion of the hearing, the trial judge denied the motion, finding

as follows:
Okay. There clearly was reasonable suspicion to
justify the stop. There was reasonable, articulate,
well-founded suspicion based upon the facts that were
set forth.

There was an identified caller, not an
anonymous caller, but an identified caller, who
reported an aggravated assault to the sheriff’s office.
The call was put out on the southwest district radio
first.

The officer, in addition to the BOLO that went
out, not only had the BOLO, it’s much more than we
typically see, went and ran the defendant’s name
through the computer system, so had a picture of the
defendant on his computer, and then as they’re
driving down State Road 16, they see a unique
vehicle, that being a scooter, red and black in color,
that meets the description, a white male, meets the
age, meets the haircut description, met all
descriptions. There may have been a little
discrepancy with regards to clothing, but a slight
discrepancy doesn’t negate the reasonable suspicion.

Once they justifiably and lawfully stopped the
vehicle, that being the scooter, the defendant stepped
off the scooter and the gun dropped out of his person
or dropped off of his person, so there was no search,
there wasn’t even a protective pat-down that would
have been justified under those circumstances, but
that didn’t even take place, so I’m gonna deny the
motion to suppress the firearm.

Id. at 1230-31.
On direct appeal, Petitioner raised a similar claim in his pro se brief. See
Resp. Ex. 6. The state argued that Petitioner’s “arguments have not been
preserved for appellate review, as they were not made [in the trial court
proceeding].” Resp. Ex. 7 at 34. The state further argued that the trial court
properly denied the motion to suppress. Id. Petitioner filed a pro se reply brief.
Resp. Ex. 8. The Fifth DCA per curiam affirmed Petitioner’s conviction and
sentence without issuing a written opinion. Resp. Ex. 9.
Insofar as Petitioner is raising a Fourth Amendment claim, the Court
finds that Stone v. Powell, 428 U.S. 465 (1976), bars such claim on federal
habeas review.
Stone instructs that where the state has
provided an opportunity for full and fair litigation of
a Fourth Amendment claim, a state prisoner may not
be granted federal habeas corpus relief on the ground
that evidence obtained in an unconstitutional search
or seizure was introduced at his trial. In this context
the contribution of the exclusionary rule, if any, to the
effectuation of the Fourth Amendment is minimal,
and the substantial societal costs of application of the
rule persist with special force.

For a claim to be fully and fairly considered by
the state courts, where there are facts in dispute, full
and fair consideration requires consideration by the
fact-finding court, and at least the availability of
meaningful appellate review by a higher state court.

Mincey v. Head, 206 F.3d 1106, 1125-26 (11th Cir. 2000) (internal quotations,
citations, and footnote omitted; formatting modified). Here, Petitioner was
afforded full and fair litigation of his suppression claim. The trial court
addressed each witness and evidence that Petitioner sought to present and
explained its reasoning for denying Petitioner’s motion. Petitioner also
presented his claim to the Fifth DCA, which affirmed his conviction and
sentence. Thus, Stone bars federal habeas review.
To the extent Stone does not bar Petitioner’s claim and the Fifth DCA
adjudicated the claim on the merits, 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, this Court concludes that
the state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable determination
of the facts in light of the evidence presented. Therefore, Ground Three is due
to be denied.

In light of the foregoing, it is
ORDERED:
1. The Petition (Doc. 1), as supplemented (Doc. 14), is DENIED, and
this case is DISMISSED WITH PREJUDICE.

2. Petitioner’s Motion to Appoint Magistrate Judge (Doc. 34) is
DENIED as moot.
3. Petitioner’s Motion for Leave to Expand Record (Doc. 35) is
DENIED.

4. 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.6

6 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.
5. 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 21*t day of
September, 2023.

. Cimetbeg g. Corrig on
Ww. TIMOTHY J. CORRIGAN
United States District Judge

JAX-3 9/15
C:
Robert Darrel Batson, #708431
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10114082. Public record. Not legal advice.