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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

COREY THOMAS,

Petitioner,

v. Case No. 3:20-cv-896-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this case by

filing a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254, Doc. 1, and

a Memorandum of Law, Doc. 1-1. He is challenging a state court (Duval County,

Florida) judgment of conviction for three counts of armed robbery. He is serving

concurrent thirty-year terms of incarceration with a thirty-year minimum

mandatory as a prison releasee reoffender (PRR) as to each count. Doc. 1.

Respondents have responded. See Doc. 14; Response.1 Petitioner filed a Reply.

See Doc. 18. This case is ripe for review.

1 Attached to the Response are numerous exhibits. See Doc. 14-1 through Doc.

14-5. This Court cites the exhibits as “Resp. Ex.”

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), 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 in order for the

state court’s decision to qualify as an adjudication on the merits. See Harrington

v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s adjudication on the

merits is unaccompanied by an explanation,

the 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 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, 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,[2] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[3] supra, at 84–85, 97 S. Ct.

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

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

3 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. Notwithstanding that a claim has been

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

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

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

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause 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).[4] 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).

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

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

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

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

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

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

remains yet another avenue for him to receive

consideration on the merits of his procedurally

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

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

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

exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001).

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

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

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

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

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

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

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

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

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants 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.

Notably, 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.

“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. 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. Petitioner’s Claims and Analysis

A. Ground One

Petitioner maintains the trial court erroneously designated him as a PRR

because armed robbery is not an enumerated felony in the PRR statute. Doc. 1

at 5. He argues the trial court failed to hold a hearing to review whether his

armed robbery conviction qualified him for the sentencing enhancement. Id.

Without the PRR designation, Petitioner contends the sentencing guidelines

authorized the trial court to impose a sentence between 97 and 158 months. Id.

Respondents allege this claim raises only an error of state law, which is not

cognizable on federal habeas corpus review. Resp. at 19, 23.

A federal court may not review a state court’s alleged failure to adhere to

the state’s sentencing requirements, which is purely a state law issue. See

Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988). Only when a state law

error rises to the level of fundamental unfairness does it implicate federal

constitutional due process, subjecting it to federal habeas review. See Osborne

v. Wainwright, 720 F.2d 1237, 1238 (11th Cir. 1983). Whether armed robbery

qualifies for a PRR sentencing enhancement is a question of state law outside

of this Court’s federal habeas purview. Further, upon a review of the

allegations, this Court finds no sentencing error that rises to the level of

fundamental unfairness. Armed robbery qualifies as an enumerated felony

under the PRR statute. § 775.082(9)(a)1, Fla. Stat.; see generally McDonald v.

State, 957 So. 2d 605, 607 (Fla. 2007) (recognizing defendant convicted of armed

robbery qualified as a PRR). Because this claim deals with an alleged state court

sentencing error and does not amount to fundamental unfairness, this claim is

not properly before this Court.

Even assuming this Court could review this claim, the state court’s

adjudication of this issue is entitled to deference. Petitioner raised this issue in

a motion to correct illegal sentence filed under Florida Rule of Criminal

Procedure 3.800(a). Resp. Ex. N at 1−3. The trial court summarily denied the

claim. Id. at 5−6. The First DCA per curiam affirmed the trial court’s denial

without a written opinion. Resp. Ex. Q. In applying deference, this Court finds

that the state court properly found no error in Petitioner’s PRR adjudication.

Also, for the first time in his Reply brief, Petitioner claims the PRR

statute is unconstitutional because a jury does not make the requisite findings

to allow for the enhancement, citing Apprendi,5 Blakely,6 and Alleyne,7 among

others. Doc. 18 at 3−5. Petitioner maintains the trial court erred in failing to

hold a hearing to have the jury determine his eligibility. Doc. 18 at 7. Initially,

arguments raised for the first time in a reply brief are not properly before a

5 Apprendi v. New Jersey, 530 U.S. 466 (2000).

6 Blakely v. Washington, 542 U.S. 296 (2004).

7 Alleyne v. United States, 570 U.S. 99 (2013).

reviewing court. See Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th

Cir. 2005) (citations omitted); Garcia v. Sec’y, Dept. of Corr., No. 8:10-cv-2116-

T-27MAP, 2013 WL 3776674, at *4−5 (M.D. Fla., July 17, 2013) (noting that

habeas petitioner’s new claim raised in his reply was not authorized, where the

Rules Governing Habeas Corpus Cases Under Section 2254 required all

grounds for relief to be stated in the petition, and petitioner failed to seek leave

to amend his petition after a response had been served).

Nevertheless, even assuming these new claims are properly before the

court they are unexhausted and procedurally defaulted. He fails to argue cause

for or prejudice from this procedural default, nor does he claim that failure to

consider the merits of this claim will amount to a fundamental miscarriage of

justice. Moreover, Florida courts have found the PPR statute does not run afoul

of Apprendi, Blakely, and Alleyne. Robinson v. State, 793 So. 2d 891, 893 (Fla.

2001) (addressing Apprendi), Peterson v. State, 911 So. 2d 184, 185 (Fla. 1st

DCA 2005) (discussing Apprendi and Blakely); Williams v. State, 143 So. 3d

423, 424 (Fla. 1st DCA 2014) (addressing Alleyne). Petitioner is thus not

entitled to relief on Ground One.

B. Ground Two

Petitioner alleges his trial counsel was ineffective for failing to advise him

of the maximum sentence he faced if convicted of the charges in the Information.

Doc. 1 at 7. Petitioner contends that had counsel informed him of the maximum

penalty, he would have accepted the state’s plea offer of ten years with no

enhancements rather than going to trial, after which he received a thirty-year

term with a thirty-year minimum mandatory as a PRR.

Petitioner raised this issue in his amended motion for postconviction

relief filed under Florida Rule of Criminal Procedure 3.850. Resp. Ex. L at

85−86. In a partial order addressing Petitioner’s amended Rule 3.850 motion,

the trial court dismissed this claim, finding it untimely filed. Id. at 89, 91.

Subsequently, the trial court entered a final order summarily denying the

remaining Rule 3.850 claims. Petitioner sought an appeal challenging the

entirety of the Rule 3.850 proceedings. Id. at 173−201, 468. The First DCA per

curiam affirmed the trial court’s orders, including its dismissal of the claim as

untimely, without a written opinion. Resp. Ex. M.

As such, this claim is procedurally barred from federal habeas review

because the state court dismissed the claim on an adequate and independent

state procedural ground. Indeed, the Eleventh Circuit has recognized Florida’s

procedural rule prohibiting untimely motions as an independent and adequate

state procedural bar. See Crayton v. Sec’y, Dep’t of Corr., No. 17-15290-C, 2019

WL 2374452, at *5 (11th Cir. May 15, 2019) (“The state court’s dismissal of

[Petitioner’s] Rule 3.850 motion as untimely is an adequate, independent

ground barring him from raising the claim in federal court.”); Castro v.

Everglades Corr. Inst., 481 F. App’x 560, 562 (11th Cir. 2012) (holding that a

state court’s determination that the petitioner’s claims were procedurally

barred by Florida’s rule against untimely motions was a state law ground

independent of the federal question and adequate to support that state court’s

judgment, rendering the claims procedurally defaulted on federal habeas

review). There is no evidence that the state courts applied its procedural rule

in an “arbitrary or unprecedented fashion” or in a “manifestly unfair manner.”

Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). Petitioner does not argue

cause for or prejudice from this procedural default, nor does he claim that

failure to consider the merits of this claim will amount to a fundamental

miscarriage of justice. Thus, Ground Two is is procedurally barred from federal

habeas consideration and due to be denied.

C. Ground Three

Petitioner contends his trial counsel was ineffective for misadvising him

to not testify. Doc. 1 at 8. Petitioner states that counsel assured him that her

opening statement combined with the cross-examination of the witnesses

conveyed his version of events and he did not need to testify. Doc. 1-1 at 18.

Petitioner maintains his testimony was the only evidence that could support his

defense and he was thereby prejudiced from counsel’s advice to not testify. Doc.

1 at 8, Doc. 1-1 at 18−19.

Petitioner raised this issue in his Rule 3.850 motion. Resp. Ex. L at 18−24.

The trial court summarily denied the claim:

Here, the record refutes Defendant’s instant contentions. It

shows Defendant voluntarily testified under oath during his

colloquy with the trial judge that he had the opportunity to speak

with his attorneys about his decision to testify, he made the decision

as to whether he wished to testify, and he did not want to testify.

Defendant affirmed he understood he could not “complain on a later

date” that he was not given the opportunity to testify. This Court

finds the record conclusively shows that Defendant waived his right

to testify. The trial court’s questions of Defendant also cured any

alleged misadvice by counsel. See Bluntson, 98 So. 3d at 627.

Accordingly, Defendant may not seek to go behind his prior sworn

testimony to the trial judge in which he testified that he did not

wish to testify, and now argue he wanted to testify and place blame

on counsel for his decision. See Gonzalez, 990 So. 2d at 1031.

Further, this Court finds counsel’s advice to Defendant was

not unreasonable or deficient. Defendant’s prior statements to

Detective Cullen reached the jury through his interview and

transcript of it as discussed supra in Ground Two. Therefore, he

faced the grave possibility of impeachment by these prior

statements if he provided trial testimony which was inconsistent

with or contradicted his prior statements. See §§ 90.608, 90.614,

Fla. Stat. (2010). Such consequences would have severely

undermined Defendant’s credibility and his version of events. See

Simon, 47 So. 3d at 885.

Additionally, counsel exhaustively presented Defendant’s

version of events to the jurors through closing arguments. Counsel

also cast doubt on the victims’ testimony by attacking their

credibility and trial testimony in light of the evidence. Specifically,

counsel argued that while Defendant added details throughout his

interview with Detective Cullen, he also offered a consistent version

of events throughout the entire interview.

Resp. Ex. L at 186−87 (record citations omitted). The First DCA per curiam

affirmed the trial court’s denial without a written opinion. Resp. Ex. M. To the

extent that the First DCA affirmed the trial court’s denial on the merits, this

Court will discuss this claim under the deferential standard for federal court

review of state court adjudications. In applying such deference, this Court finds

the state court’s adjudication of the claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly

established federal law, and was not based on an unreasonable determination

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

Nevertheless, even if the state court’s adjudication of this claim is not

entitled to deference, Petitioner’s claim lacks merit. The jury heard through the

recorded interview Petitioner’s defense and version of events, including details

of the alleged drug deal gone awry. Thus, the version of events Petitioner now

claims he would have testified to are those that the jury already heard. Notably,

Petitioner’s defense at trial was that he approached Sean Pilgrim, one of the

victims, to purchase drugs after he saw and smelled him using drugs. Resp. Exs.

D at 99, 102, 115, 130; E at 215. After exchanging funds, Pilgrim returned with

drugs, but Petitioner disputed the amount he received. Resp. Ex. D at 102−04.

An altercation ensued which moved into the hotel room. Id. at 104, 106.

Petitioner had a female acquaintance with him who took items from the hotel

room and stole a vehicle belonging to one of the victims. Resp. Exs. D at 123,

133, 152−53; E at 219−20.

Trial counsel cross-examined each of the state’s witnesses, highlighting

holes in their testimony, to help support Petitioner’s version of events detailed

in his recorded interview with law enforcement. Through cross-examination,

trial counsel elicited evidence that Brittany Withers, one of the victims,

returned to the hotel room shortly before the offense occurred and did not know

what had taken place before she returned. Id. at 68. Trial counsel tailored

questions about Pilgrim’s marijuana usage, including whether the food in the

hotel room were “munchies,” and questioned whether Pilgrim was trying to sell

marijuana that day. Id. at 56−57. With Anna Jarquin’s testimony, a witness

who later saw Petitioner with the victim’s stolen vehicle, trial counsel

challenged her ability to adequately describe the individuals, having her admit

that she could not make out facial features or definitively identify body shapes

because both individuals were wearing loose clothing. Id. at 76−77. These

tactics on cross-examination supported the version of events Petitioner now sets

forth and argues he would have presented through his own testimony. Also,

when asked by the trial court if he wished to testify, Petitioner stated, under

oath, that he did not want to exercise that right. Resp. Ex. D at 181−82.

Petitioner made this decision even after the trial court warned Petitioner he

could not complain about this decision at a later date. Id. at 180.

Indeed, had he testified, the state would have no doubt cross-examined

Petitioner about his statements during his police interview, trying to poke holes

in his theory of defense. Any inconsistency between his pretrial and potential

trial statements would have damaged his credibility. Thus, this Court finds

reasonable trial counsel’s decision to not open Petitioner to that possibility,

especially when the jury already heard his version of events through his

recorded interview. On this record, Petitioner cannot show that no competent

counsel would have advised him not to testify. See Chandler v. United States,

218 F.3d 1305, 1315 (11th Cir. 2000) (“And because counsel’s conduct is

presumed reasonable, for a petitioner to show that the conduct was

unreasonable a petitioner must establish that no competent counsel would have

taken the action that his counsel did take.”). Likewise, assuming arguendo

counsel performed deficiently, Petitioner has not shown a reasonable

probability exists that the outcome would have been different had counsel

advised him to testify. Thus, Ground Three is denied.

D. Ground Four

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

the state’s improper comments during closing argument and move for a mistrial

or curative instruction. Doc. 1 at 10. Petitioner challenges the comments below

made by the state during closing argument:

Now I would love to stand up here and wave the recovered

gun at you, and say here, it is here, here is the literally smoking

gun that we have. We don’t have that. Don’t reward this defendant

for being a good criminal.

. . . .

Now, I wish maybe, you know, there had been an officer just

happened to walk by as this was happening, but unfortunately,

again, that didn’t happen. This defendant gets away for a few weeks

before he’s arrested. He could have done any number of things with

that firearm that he used. But let’s go back to the consistent

testimony of the credible witnesses, the three victims, all of them

described the gun the same, they all said that this defendant was

the one with the gun, consistent stories through and through. And

again, don’t reward this defendant for being a good criminal, just

because the State does not have a firearm to wave in front of you.

Resp. Ex. D at 196−98. Petitioner contends these comments from the state

referenced conduct not in evidence, shifted the burden of proof so he had to

explain what happened to the firearm, vouched for the credibility of the

witnesses, and implied that Petitioner engaged in witness tampering.

Petitioner raised this issue in his Rule 3.850 motion. Resp. Ex. L at 34−41.

The trial court summarily denied the claim, addressing the issue as follows:

Third, Defendant argues the prosecutor presented facts not

in evidence, shifted the burden to the Defense to explain where the

firearm was, inferred that Defendant tampered with evidence, and

vouched for the victims’ credibility . . . This Court has placed in

context the selected arguments which Defendant presented in his

instant Motion. The emphasized excerpts that Defendant presented

do not accurately depict the entire argument. Placed in context, this

argument sought to demonstrate to the jurors that “use of a

firearm” was an element of the crimes charged, Armed Robbery;

therefore, the jurors could reference the victims’ testimony to fulfill

this element. Fla. Std. Jury Instr. (Crim.) 15.1 (2010) (stating, “If

you find that the defendant carried a firearm in the court of

committing the robbery, you should find [him] [her] guilty of

robbery with a firearm.”). The jurors received this instruction which

also provided that the State had the burden of proving the offense

of Armed Robbery. This Court concludes that the prosecutor’s

argument sought to argue to the jurors that although a firearm was

not recovered, the trial testimony demonstrated that a firearm was

used during the commission of the armed robberies. This argument

properly argued the standard jury instruction in terms of the

State’s evidence. Regarding Defendant’s claims that the prosecutor

vouched for the victims’ credibility by stating, “don’t reward this

defendant for being a good criminal,” this Court finds that the

result of trial could not have been different if counsel had objected

to this argument. See Jackson, 147 So. 3d at 486 (finding by

discussing evidence presented during trial in terms of witnesses’

testimony, prosecutor may ask jury to weigh credibility of witnesses

during arguments). Counsel was not ineffective for failing to object

to proper arguments.

Resp. Ex. L at 194−95 (record citations omitted). The First DCA per curiam

affirmed the trial court’s denial without a written opinion. Resp. Ex. M. To the

extent that the First DCA affirmed the trial court’s denial on the merits, this

Court will address these claims in accordance with the deferential standard for

federal court review of state court adjudications.

In applying such deference, this Court finds that the state court

adequately determined that Petitioner failed to demonstrate deficiency for trial

counsel’s alleged error in failing to object to the state’s comments in closing

argument. A reviewing court must evaluate an allegedly improper comment in

the context of both the prosecutor’s entire argument and the trial as a whole,

because “[c]laims of prosecutorial misconduct are fact-specific inquiries which

must be conducted against the backdrop of the entire record.” United States v.

Hall, 47 F.3d 1091, 1098 (11th Cir. 1995); accord United States v. Young, 470

U.S. 1, 11 (1985) (“[A] criminal conviction is not to be lightly overturned on the

basis of a prosecutor’s comments standing alone, for the statements or conduct

must be viewed in context; only by doing so can it be determined whether the

prosecutor’s conduct affected the fairness of the trial.”).

Upon review of the prosecutor’s opening, closing, and rebuttal arguments,

see Resp. Exs. D at 8−18, 184−200; E at 205−12, 222−36, and in the context of

the entire trial record, this Court finds these allegedly improper comments did

not affect the fairness of Petitioner’s trial. The issue addressed by the

prosecutor’s comments on the gun was germane, and while the language

utilized might have been more restrained,8 it was not of the type to entitle

Petitioner to relief. In context, the prosecutor’s comments were not so improper

as to affect the fairness of trial as they merely constituted inferences that may

be drawn from the evidence already presented to the jury.

Petitioner’s contention that counsel should have objected to the

arguments during the closing argument would have been fruitless as, under

Florida law, attorneys are allowed wide latitude with their arguments in

closing. Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007) (“Attorneys are

permitted wide latitude in closing . . .[c]losing argument is an opportunity for

counsel to review the evidence and to explicate those inferences which may

reasonably be drawn from the evidence.”); Evans v. State, 838 So. 2d 1090, 1094

(Fla. 2002) (recognizing “the state cannot comment on a defendant’s failure to

produce evidence to refute an element of the crime . . . However, a prosecuting

8 The comments about not rewarding Petitioner for being a “good criminal” were

brief in the context of the entire closing argument and did not impact the fairness of

the trial. See Simpson v. State, 3 So. 3d 1135, 1147 (Fla. 2009) (“the comments were

brief and in no way do they constitute fundamental error.”).

attorney may comment on the jury’s duty to analyze and evaluate the evidence

and state his or her contention relative to what conclusions may be drawn from

the evidence.”). The challenged comments in Petitioner’s pleading were

reasonably drawn from the evidence and the prosecutor did not ask the jury to

convict Petitioner based on anything besides evidence at trial. Upon this record,

this Court finds 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 considering the evidence in the state court

proceedings.

For the first time in his Reply brief, Petitioner maintains counsel should

have requested a curative instruction and objected to the principal instruction

being read to the jury. Doc. 18 at 13. Again, allegations raised for the first time

in a Reply brief are not properly before this Court. Herring, 397 F.3d at 1342.

Nevertheless, even assuming this new claim is properly before the court it is

unexhausted and procedurally defaulted, and Petitioner fails to argue cause for

or prejudice from this procedural default. He also does not claim that failure to

consider the merits of this claim will amount to a fundamental miscarriage of

justice.

In any event, there was evidence at trial that a second perpetrator was

present at the time of the offense. Resp. Ex. D at 30, 48−49, 64−65. Petitioner

admits to the second perpetrator’s presence during the interview with law

enforcement, which the jury heard at trial. Id. at 122, 128, 130, 132−34. Thus,

any objection to the principal instruction would have been meritless given the

evidence presented at trial. See Freeman v. Att’y Gen., 536 F.3d 1225, 1233

(11th Cir. 2008) (“A lawyer cannot be deficient for failing to raise a meritless

claim. . . .”); McGriff v. State, 12 So. 3d 894, 894 (Fla. 1st DCA 2009) (“The

principals instruction may be given if the evidence adduced at trial supports

such an instruction.”).

For the reasons set forth above, Ground Four is due to be denied.

E. Ground Five

Petitioner argues his trial counsel was ineffective for failing to

excise/redact portions of the taped interview that were prejudicial or, in the

alternative, file a motion in limine to exclude those parts and object to

prejudicial parts being played. Doc. 1 at 11. Specifically, Petitioner takes issue

with these statements from Detective Cullen during the taped interview:

Okay. Well, you do have a warrant out for your arrest and

that’s why your down here, okay.

. . . .

I don’t know anything about that. I’m not sure what

happened, or how you got down here. But I know the reason you’re

in here, in this office right now, is because you have a warrant for

your arrest. That’s why you’re right here right now. I’m not sure

what happened leading up to that, okay.

So, and let me tell you this, this is a pretty serious warrant,

its been signed by a Judge, okay, and its – and I’m the one that went

and got the warrant, okay, and had the Judge sign it, and the State

Attorney’s Office agree, and the Judge read the warrant and signed

it. So, there’s a warrant out for you arrest, and its been signed by a

Judge.

Resp. Ex. D at 91. Petitioner contends these comments were prejudicial because

they implied that the government sanctioned the arrest and that the police,

state attorney’s office, and judge all agreed to his guilt. Doc. 1-1 at 26−27.

Petitioner alleges any competent attorney would have known that references to

the procedure employed by Detective Cullen to obtain the warrant were not

relevant to any issue at trial and fundamentally undermined the fairness of his

trial because the jurors would be inclined to give an officer’s testimony more

weight. Id. at 27.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. L at

11−17. The trial court summarily denied the claim, finding:

Regarding the interview video as a whole, the record reflects

that after jury selection and prior to the start of trial, Defendant

agreed with the Defense strategy to play a longer version of the

interview video for the jurors. According to the pre-trial

discussions, Defendant wanted two hours of the interview played,

rather than only eight minutes, with some longer redactions. The

trial judge asked Defendant if the decision to play the longer

version of the interview was a joint decision that he made with

counsel, and Defendant stated “I’m in agreement.” Defendant

further told the trial judge that he was “[a]bsolutely” in agreement

that the “entire video” should be played. Defendant attested that he

did not have any questions about the videotape being played during

trial. The parties memorialized this agreement through a

stipulation, which was filed with the Clerk of Court on May 17,

2010.

This Court finds Defendant may not now allege counsel was

ineffective for taking an action which Defendant agreed. See Iacono

v. State, 930 So. 2d 829, 831 (Fla. 4th DCA 2006) (“A defendant is

not entitled to rely on an attorney’s advice to commit perjury above

the solemn oath that the defendant makes to the court to tell the

truth.”); see also Stano v. State, 520 So. 2d 278, 280 (Fla. 1988)

(finding it is well-settled in Florida that a defendant may not seek

to go behind previous sworn testimony in a motion seeking

postconviction relief).

Assuming arguendo Defendant could go behind his prior

sworn testimony, regarding all of the statements with which

Defendant takes issue herein, this Court finds Defendant’s

arguments fail. The Detective did not engage in improper

questioning of Defendant, such that a motion in limine to prohibit

his statements would have been successful or that the trial judge

would have sustained objections by counsel to the statements. See,

e.g., Lewis v. State, 204 So. 3d 495, 496 (Fla. 4th DCA 2016) (citing

McWatters v. State, 36 So. 3d 613, 638 (Fla. 2010) (finding trial

court “did not abuse its discretion in admitting detective’s

statements during interview with defendant concerning facts that

he had gathered from his investigation, as they were not admitted

for truth of the matter but solely to provide context and to provoke

reaction of defendant.”)). See also Davis, 136 So. 3d at 1203−05

(finding detective’s statements that defendant was lying not

improper).

Indeed, while interviewing Defendant, the record shows the

Detective provided a proper background for the interview, including

that he had obtained a signed warrant for Defendant’s arrest from

a judge. During the interview of Defendant, the Detective discussed

his interviews with the witnesses involved including the victims,

sought to invoke a reaction from Defendant, and provided a context

for Defendant’s statements. The Detective’s statements during the

interview also provided an explanation for why the Detective

questioned Defendant. See Shrader v. State, 962 So. 2d 369, 371

(Fla. 4th DCA 2007). During trial, the Detective testified about the

reasons why he questioned Defendant in this manner. He explained

that to invoke reaction for Defendant, he presented Defendant with

facts learned through his investigation as Defendant was “very

hesitant to talk” and acted like he was not present at the crime

scene.

Further, to the extent that Defendant argues the trial court

erred regarding the Detective’s statements at issue, Defendant

disputed these same statements on direct appeal. In his Initial

Brief on direct appeal, Defendant argued in Issue Two that the

Detective “repeatedly mentioned” during the interview that

Defendant had been arrested pursuant to a warrant signed by a

judge. Because this issue was previously raised on appeal and the

First DCA did not deem these questions improper, Defendant is

procedurally barred from raising it again in the instant motion

seeking postconviction relief. See Phillips, 894 So. 2d 28, 35 n.6

(Fla. 2004) (rejecting defendant’s postconviction claims as

procedurally barred because the claims were raised and rejected on

direct appeal); see also Hamilton, 875 So. 2d 586, 590 n.3 (Fla.

2004).

Resp. Ex. L at 182−84 (record citations omitted). The First DCA per curiam

affirmed the trial court’s denial without a written opinion. Resp. Ex. M.

To the extent that the First DCA affirmed the trial court’s denial on the

merits, this Court addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications. In applying such

deference, this Court finds that the state court adequately determined that

Petitioner did not show prejudice from trial counsel’s alleged failure to redact

parts of the recorded interview. First, Petitioner agreed to the stipulated

version of the videotape played. Petitioner engaged in a colloquy with the trial

court, acknowledging that he agreed with the decision to play a longer version

of the interview. Resp. Ex. F at 71−74. Petitioner stated he reviewed that

decision with counsel and agreed to this defense strategy. Id. at 73. When asked

if he had questions about playing the interview, Petitioner responded, “no, sir.”

Id. at 74.

Detective Cullen’s discussion of the warrant during the interview

provided context as to why law enforcement arrested Petitioner. As discussed

by Detective Cullen during his trial testimony, the initial parts of the

interrogation were meant to provoke a more responsive interview. Resp. Ex. D

at 90−91, 98. The Florida Supreme Court has found law enforcement tactics,

like these, to be admissible in Florida. Roundtree v. State, 145 So. 3d 963, 965

(Fla. 4th DCA 2014) (“[A] police officer’s statements during an interrogation are

admissible if they provoke a relevant response or provide context to the

interview such that a rational jury could recognize the questions are

interrogation techniques used to secure confessions.”). Accordingly, even if

counsel had moved to suppress or redact the discussion of the warrant, it would

have been a meritless objection. Trial counsel cannot be held ineffective for

failing to make a meritless objection. See Freeman, 536 F.3d at 1233.9

Upon thorough review of the record and the applicable law, this Court

concludes that the state court’s decision to deny Petitioner’s claim was neither

9 As noted in the trial court’s order, Petitioner raised issues related to this

portion of the interview on direct appeal in the context of trial court error. Resp. Ex.

H at 29−30. The First DCA denied this claim and affirmed the judgment and sentence.

Resp. Ex. K.

contrary to nor an unreasonable application of Strickland, and it is not based

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

to the state court. See 28 U.S.C. § 2254(d).

To the extent Petitioner alleges counsel was ineffective for failing to

challenge the underlying affidavit and arrest warrant because the officer wrote

the incorrect year on the signature line of his affidavit, that claim is also

without merit because the incorrect year on the date of the officer’s signature is

merely a scrivener’s error. The court dated its signature correctly, which lends

support for the fact that the officer’s incorrect date was a scrivener’s error. Resp.

Ex. B at 0007; See generally Velardi v. Walsh, 40 F.3d 569, 576 (2d Cir. 1994)

(“Warrants have been upheld despite “technical errors,” such as an incorrect

street address, when the possibility of actual error is eliminated by other

information . . . .”); United States v. Lowe, No. 08-CR-340, 2009 WL 723344, at

*1 (E.D. Wis. Mar. 17, 2009), aff’d, 389 F. App’x 561 (7th Cir. 2010) (“From this,

it is apparent that the fact that the wrong month was typed into the jurat of the

affidavit submitted in support of the warrant application was a mere scrivener’s

error. Clerical errors of this kind do not invalidate a warrant.”). Thus, Ground

Five is due to be denied.

Accordingly, it is

ORDERED AND ADJUDGED:

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

WITH PREJUDICE.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

3. If Petitioner appeals this Order, this Court denies a certificate of

appealability. Because this 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.!°

DONE AND ORDERED at Jacksonville, Florida, this day of

September, 2023.

S □ st Cimelbeg g. Corrig on

Ww TIMOTHY J. CORRIGAN

United States District Judge

10 This 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 (20038) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

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

appealability.

29

C: Corey Thomas, DOC # 127859

Counsel of Record