Opinion

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

Court: District Court, M.D. Florida
Filed: Oct 6, 2023
Cited by: 0 cases
Authority: More cited than 20.0%

stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”

How later courts described this case

stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
holding that when a defendant does not successfully prove any of his individual claims and, consequently, counsel’s performance is deemed sufficient, a claim of cumulative error must fail
“Because the alleged individual errors are without merit, the contention of cumulative error is similarly without merit.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KESHON B. WILLIAMS,

Petitioner,

v. Case No. 3:20-cv-1428-BJD-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Keshon B. Williams, an inmate of the Florida penal system,

initiated this action on November 9, 2020,1 by filing a Petition Under 28 U.S.C.

§ 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition; Doc.

1) in the United States District Court for the Northern District of Florida.2 He

also filed a Memorandum of Law (Memorandum; Doc. 2). The Northern District

of Florida transferred the case to this Court. Order (Doc. 4). In the Petition,

Williams challenges a 2016 state court (Duval County, Florida) judgment of

conviction for attempted murder in the second degree (count one), two counts

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference to pleadings, the Court will cite the document page

numbers assigned by the Court’s electronic docketing system.

of aggravated assault (counts two and three), and possession of a firearm by a

convicted felon (count four). He raises four grounds for relief. See Petition at 2-

6. Respondents submitted an Answer to Petition for Writ of Habeas Corpus

(Response; Doc. 15). They also submitted an Appendix with Exhibits A-R.3 See

Doc. 15. Williams filed a brief in reply (Reply; Doc. 22).

II. Relevant Procedural History

On April 6, 2015, the State of Florida charged Petitioner by information

in Case No. 2015-CF-1933 with possession of a firearm by a convicted felon.

Ex. A at 12. The State of Florida later filed a third amended information

charging attempted murder in the second degree, two counts of aggravated

assault, and possession of a firearm by a convicted felon. Id. at 36-37. The State

filed notices of intent to classify Petitioner as a prison release reoffender (PRR)

and a habitual felony offender (HFO). Id. at 26, 27, 39, 83, 96, 97. The court

conducted a jury trial on February 16, 2016, and February 18-19, 2016. Ex. B;

Ex. C. The jury returned a verdict of guilty as charged as to all counts. Ex. A

at 40-44; Ex. C at 446-67, 473-74. Through counsel, Petitioner filed a Motion

for New Trial. Ex. A at 81-82. The trial court denied the motion. Id. at 118, 131.

3 The Court refers to the exhibits contained in the Appendix with Exhibits (Doc.

15) as “Ex.” and references the page number in the bottom center of the page, if

available, otherwise the Court refers to the page number on the document itself.

On March 16, 2016, the trial court sentenced Petitioner to thirty years in

prison for counts one and four and ten years in prison on counts two and three,

all counts to run concurrently. Ex. A at 87-92, 150. For counts one through

three, the court sentenced Petitioner as a PRR and an HFO. Id.

Petitioner appealed, id. at 122, raising one issue: “the court erred in

denying the motion for judgment of acquittal as to the charges of aggravated

assault because there was no evidence of a threat directed at the two

bystanders alleged to be victims.” Ex. G at i. Additional briefing followed. Ex.

H; Ex. I. The First District Court of Appeal (First DCA) affirmed Petitioner’s

conviction and sentence finding the trial court correctly denied the motion for

judgment of acquittal. Ex. J; Williams v. State, 238 So. 3d 915 (Fla. 2018). The

mandate issued on March 21, 2018. Ex. K.

During the pendency of the direct appeal, Petitioner, through counsel,

filed a Rule 3.800(b)(2) motion to correct sentencing error. Ex. E at 1-4. The

trial court entered an amended order granting the motion and striking

Petitioner’s designation as an HFO in count one. Id. at 17-28. On October 3,

2016, the trial court entered a corrected judgment and sentence nunc pro tunc

to March 16, 2016. Ex. F.

Petitioner filed a pro se motion for postconviction relief pursuant to

Florida Rule of Criminal Procedure 3.850 on May 11, 2018. Ex. L at 1-18.4 On

March 4, 2019, the trial court entered an order denying Petitioner’s motion for

postconviction relief. Id. at 19-22. In its order, the court set forth the applicable

law regarding postconviction claims of ineffective assistance of counsel, citing

Strickland v. Washington, 466 U.S. 668 (1984). Ex. L at 19-20. The court

attached portions of the record to its order. Id. at 23-41.

Petitioner filed a notice of appeal. Id. at 42-43. He filed a pro se brief. Ex.

M. The State filed a notice of filing no answer brief. Ex. N. On October 15, 2019,

the First DCA affirmed per curiam the trial court’s decision without a written

opinion. Ex. O. Williams v. State, 282 So. 3d 53 (Fla. 1st DCA 2019). The

mandate issued on November 12, 2019. Ex. P.

Petitioner also filed a state petition for writ of habeas corpus alleging the

ineffective assistance of appellate counsel. Ex. Q. On September 24, 2018, the

First DCA denied the petition. Ex. P.

4 In reciting the procedural history, the Court identifies the date of Petitioner’s

filings giving him the benefit of the mailbox rule.

III. One-Year Limitations Period

Respondents calculate the Petition was timely filed. Response at 4-5.

This action was timely filed within the one-year limitations period. See 28

U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.

The pertinent facts of this case are fully developed in the record before the

Court. Because the Court can “adequately assess [Petitioner’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

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

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

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

2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems,

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.

34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of

final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”

Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation

marks omitted)).

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

decision, if any, that adjudicated the claim 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 a written 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 United States Supreme Court has

instructed:

[T]he 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.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision, such

as persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States;” or (2) “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); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court's decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’” Titlow, 571 U.S. at --

-, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,

301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

examination of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,

562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.

Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

adjudicated on the merits in the state courts, they must be evaluated under 28

U.S.C. § 2254(d).

B. Exhaustion/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).

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,[5] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[6] supra, at 84–85, 97 S.

Ct. 2497. A state court’s invocation of a procedural

rule to deny a prisoner’s claims precludes federal

review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate

to support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 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.

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

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

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (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,

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).[7]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

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

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:

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

[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 the effective

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

performance falls below an objective standard of reasonableness and thereby

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

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland, 466

U.S. at 687).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. 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.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, 562 U.S. at ---, 131 S.

Ct. at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question is not whether a federal court

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable — a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (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 ---, 131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference — this one to a state court’s decision — when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, Petitioner alleges he received the ineffective assistance

of counsel with respect to counsel’s failure to move for a new trial under the

theory that the weight of the evidence did not support the convictions for

aggravated assault. Petition at 2. In ground one of his postconviction motion,

Petitioner alleged a comparable claim of ineffective assistance of counsel. Ex.

L at 11-14.

Petitioner’s ineffectiveness claim is without merit. The postconviction

court found defense counsel did file a motion for new trial setting forth specific

grounds and the claim of ineffectiveness was without merit. Ex. L at 20. The

First DCA affirmed. Ex. O. As such, AEDPA deference is due.

To the extent that the First DCA decided the claim on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

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

presented in the state court proceedings. Thus, Petitioner is not entitled to

relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Petitioner’s ineffectiveness claim is without merit.

The record shows the following. After the State rested, defense counsel, Ms.

Tricia Rado, moved for a judgment of acquittal. Ex. C at 343-55. She

specifically addressed counts two and three in her argument. Id. at 347-54.

The court denied the motion noting, “[i]t’s close. It’s very close.” Id. at 354. Ms.

Rado renewed the motion for judgment of acquittal, which was denied. Id. at

371-72. Of import, the motion for new trial included claims that the trial court

erred in not granting the motion for judgment of acquittal made at the close of

the State’s case and at the close of all of the evidence. Ex. A at 81. In addition,

counsel argued the verdict was contrary to the weight of the evidence and

contrary to the law. Id.

To prevail on a claim of ineffective assistance of counsel claim, a

petitioner must demonstrate both deficient performance and prejudice. The

Court is not convinced that Ms. Rado performed deficiently under these

circumstances. Even assuming arguendo deficient performance by counsel,

Petitioner has not shown any resulting prejudice. Petitioner has not shown a

reasonable probability exists that the outcome of the case would have been

different if counsel had performed differently. Indeed, the First DCA found the

trial court correctly denied the motion for judgment of acquittal as “a

reasonable jury could find Williams had an apparent ability to do harm and

that his firing the rifle and trying to kill someone would create a well-founded

fear that violence was imminent.” Ex. J at 3. For all of the foregoing reasons,

Petitioner is not entitled to habeas relief on the claim in Ground One.

B. Ground Two

As Ground Two, Petitioner alleges “[c]ounsel’s failure to alert the court

to Petitioner[’]s highly questionable Mental Health.” Petition at 4. In ground

two of his postconviction motion, Petitioner alleged a similar claim of

ineffective assistance of counsel. Ex. L at 14-16. He alleged defense counsel

rendered ineffective assistance by failing to have Petitioner’s competency at

the time of the crime evaluated. Id. He described going through a rough period

of life, being unemployed, unable to provide for his children, turning to

prescription drugs, alcohol, and cocaine, and dealing with depression and

suicidal thoughts. Id. at 14-15. He described ingesting prescription medication,

alcohol, and cocaine prior to the time of his arrest. Id. at 15. He believed that

he may not have been insane, but asserted he was without the ability to form

specific intent to commit the crimes. Id.

In his Memorandum, Petitioner bifurcated Ground Two into two parts:

Part One – counsel was ineffective for failure to have the issue of his

competency raised and evaluated, and Part Two – counsel failed to properly

convey a plea offer. Memorandum at 4-6. Respondents contend that Petitioner

did not properly exhaust the ineffectiveness claim in the state courts as to

Ground Two, Part Two, and therefore this particular claim is procedurally

defaulted. Response at 25-26.

The Court finds Petitioner did not exhaust the claim raised in Ground

Two, Part Two. Because any future attempt to exhaust it would be futile, the

claim is procedurally defaulted. As Petitioner is procedurally barred from

raising Ground Two, Part Two, he must demonstrate cause and prejudice.

Petitioner has failed to establish cause and prejudice or that a fundamental

miscarriage of justice will result if the Court fails to address the claim on its

merits. The Court further finds this is not an extraordinary case as Petitioner

has not made a showing of actual innocence rather than mere legal innocence.

As such, the Court finds that the claim in Ground Two, Part Two, is

procedurally defaulted and the fundamental miscarriage of justice exception is

inapplicable. Petitioner’s procedural default bars this Court’s review of Ground

Two, Part Two.

That leaves Ground Two, Part One, for the Court’s consideration.

Respondents concede that Petitioner exhausted his state court remedies by

raising this ineffective assistance of counsel claim by asserting it in ground two

of his motion for postconviction relief, and by raising it on appeal from the

denial of postconviction relief. Response at 25.

The postconviction court addressed this ground finding:

In the Defendant’s second ground for relief, he

alleges that counsel rendered ineffective assistance for

failing to have the Defendant evaluated for competency.

The Defendant avers, at the time of the crime: he was

unemployed; unable to provide for his children; was

using prescription drugs, alcohol and cocaine to self-

medicate; he was dealing with thoughts of suicide; he

was depressed; and “although may not have been

legally insane at the time, he was definitely without the

ability to form the specific intent to commit the crimes.”

A claim of “voluntary intoxication” defense was

abrogated in 1999 when Florida Statutes, section

775.051 came into effect. This statute states that:

voluntary intoxication resulting from the

consumption, injection, or other use of alcohol or other

controlled substance as described in chapter 893 is not

a defense to any offense proscribed by law. Evidence of

a defendant’s voluntary intoxication is not admissible

to show that the defendant lacked the specific intent

to commit an offense and is not admissible to show

that the defendant was insane at the time of the

offense, except when the consumption, injection, or use

of a controlled substance under chapter 893 was

pursuant to a lawful prescription issued to the

defendant by a practitioner as defined in s. 893.02.

Section 775.051, Florida Statutes (2006). The statute

excludes introduction of evidence of voluntary

intoxication at trial. Troy v. State, 948 So. 2d 635, 644-

45 (Fla. 2006); Barrett v. State, 862 So. 2d 44, 46-48

(Fla. 2d DCA 2003). The purpose of this statute is to

make those who choose to become intoxicated

responsible for their actions, and has been held

constitutional. Troy, 948 So. 2d at 664-645; Barrett,

862 So. 2d at 46-48. In review of the instant motion

and the record, the Defendant fails: to indicate or

reflect, he has ever been diagnosed with a mental

illness or any condition that would impact his ability

to understand the proceedings or assist counsel; and

fails to allege specific legal facts showing that a

reasonably competent attorney would have questioned

competence to proceed and set forth clear and

convincing circumstances that create a real,

substantial and legitimate doubt as to the Defendant’s

competency. History of drug abuse, depression, and

aggressive, rebellious behavior do not raise a valid

question as to his competency to stand trial. Also, if

attempting to allege trial court error for failure to

make a competency determination, this argument is

procedurally barred from being raised in a

postconviction motion. Therefore, this claim is without

merit.

Ex. L at 20-21. The postconviction court denied relief and the First DCA per

curiam affirmed the denial of relief without a written opinion. Ex. O.