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

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

URL: https://www.frixlaw.com/law-library/cases/10114083

## 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/10114083

## How later opinions describe it (automated extraction)

- rejecting defendant’s postconviction claims as procedurally barred because the claims were raised and rejected on direct appeal

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10114083. Public record. Not legal advice.