How later courts described this case
- “Martinez is of no help because [Petitioner] has not presented a ‘substantial claim’ that his trial counsel rendered ineffective assistance[.]”
- stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
NONI JAMIL STINSON,
Petitioner,
v. Case No. 3:20-cv-1202-BJD-JBT
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Noni Jamil Stinson, an inmate of the Florida penal system,
initiated this action on September 14, 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).2 She is proceeding on an Amended Petition (Doc. 16) and Memorandum
of Law and Argument in Support of Amended 28 USC 2254 Exception to
Procedural Default Actual Innocence (Memorandum; Doc. 17). In the Amended
Petition, Stinson challenges a 2013 state court (Duval County, Florida)
1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
2 For purposes of reference to pleadings and the Appendix, the Court will cite
the document and document page numbers assigned by the Court’s electronic
docketing system.
judgment of conviction for manslaughter. She raises seven grounds for relief
in the Amended Petition and Memorandum. See Amended Petition at 5-11;
Memorandum at 7-25.3 Respondents submitted a Response to Federal Habeas
Corpus Petition (Response; Doc. 23). They also submitted an Appendix with
Exhibits 1-47. See Doc. 23-1 through 23-47. Stinson filed a brief in reply (Reply;
Doc. 26).
II. Relevant Procedural History
On August 31, 2006, the State of Florida charged Petitioner by
information in Case No. 2006-CF-12588 with murder in the second degree.
(Doc. 23-2 at 2). After a jury trial in August 2007, she was convicted as charged
and sentenced to 35 years in prison. (Doc. 23-3 at 2-10). On March 13, 2009,
the First District Court of Appeal (First DCA) reversed and remanded for a
new trial because the standard jury instruction on the lesser included offense
of manslaughter by act erroneously included an element that the defendant
intentionally cause the death of the victim. Stinson v. State, 69 So. 3d 291
(2009); (Doc. 23-11).
3 As do Respondents, the Court references the grounds as stated in the
Memorandum as the Amended Petition does not include all of the grounds and is less
complete. See Response at 15 n.11.
2
The State of Florida later filed an amended information charging
Petitioner with murder in the second degree in connection with the shooting
death of her husband on August 21, 2006. (Doc. 23-15 at 61-62). The court
conducted a jury trial commencing on August 20, 2013. (Doc. 23-19); (Doc. 23-
20); (Doc. 23-21); (Doc. 23-22). The jury returned a verdict of guilty as to the
lesser-included offense of manslaughter. (Doc. 23-15 at 171-72); (Doc. 23-22 at
44). Through counsel, Petitioner filed a Motion for New Trial. (Doc. 23-15 at
173-74). The trial court denied the motion. Id. at 187. On October 1, 2013, the
trial court sentenced Petitioner to thirty years in prison. (Doc. 23-3 at 20-101);
(Doc. 23-15 at 190-95); (Doc. 23-16 at 16-97).
Petitioner appealed, (Doc. 23-16 at 4), raising two issues: (1) the trial
court’s justifiable use of deadly force jury instruction amounted to fundamental
error because the instruction deprived Appellant of her “Stand Your Ground”
defense; and (2) prosecutorial misconduct in closing argument deprived Ms.
Stinson of a fair trial. (Doc. 23-23 at 3). Additional briefing followed. (Doc. 23-
23 at 40-54); (Doc. 23-24). On September 5, 2014, the First DCA per curiam
affirmed Petitioner’s conviction and sentence. (Doc. 23-25 at 2). The mandate
issued on September 23, 2014. Id. at 4.
3
Petitioner filed a pro se motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850 on September 2, 2015. (Doc 23-28 at
7-26).4 She filed an amended motion for postconviction relief on May 23, 2016.
Id. at 27-46. The state filed a response. Id. at 52-58; (Doc. 23-29 at 1-6). The
court granted and scheduled an evidentiary hearing on grounds 3 and 4 of the
initial motion and grounds 2, 4, 5 and 6 of the amended motion. (Doc. 23-29 at
7-12). The court conducted an evidentiary hearing commencing on March 27,
2019. (Doc. 23-42 at 11-359). Ann Fennell and Beth Sammons represented
Petitioner. Id. Afterwards, Petitioner, through counsel, provided the court with
a Memorandum in Support of Motion for Post-conviction Relief. (Doc. 23-40 at
40-66). The state also submitted arguments. (Doc. 23-43 at 5-19). On June 25,
2019, the trial court entered an order denying Petitioner’s motions for
postconviction relief. (Doc. 23-40 at 67-83). 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). (Doc. 23-40 at
68-69). The court attached portions of the record to its order. Id. at 84-115.
4 In reciting the procedural history, the Court identifies the date of Petitioner’s
filings giving her the benefit of the mailbox rule.
4
Petitioner filed a notice of appeal. Id. at 116-17. She filed a pro se brief.
(Doc. 23-44). The State filed an answer brief. (Doc. 23-45). Petitioner filed a
reply brief. (Doc. 23-46). On August 31, 2020, the First DCA affirmed per
curiam the trial court’s decision without a written opinion. (Doc. 23-47 at 2-3).
The mandate issued on September 29, 2020. Id. at 4.
III. One-Year Limitations Period
Respondents concede the Petition was timely filed. Response at 6. 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
5
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,
6
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
7
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.
8
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).
9
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
10
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
5 Coleman v. Thompson, 501 U.S. 722 (1991).
6 Wainwright v. Sykes, 433 U.S. 72 (1977).
11
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, 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
7 Murray v. Carrier, 477 U.S. 478 (1986).
12
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.
13
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
14
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
15
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 she received the ineffective assistance
of counsel and was denied a fair trial with respect to counsel’s failure to retain
an expert on battered spouse syndrome and have the expert testify at trial.
Memorandum at 7-9. In ground five of her amended postconviction motion,
16
Petitioner alleged a comparable claim of ineffective assistance of counsel. The
postconviction court granted an evidentiary hearing on this ground.
Petitioner’s ineffectiveness claim is without merit. The postconviction
court found defense counsel retained two experts to vet a possible battered
spouse defense. (Doc. 23-40 at 76). The court continued its examination of the
evidence presented at the evidentiary hearing. Id. For example, the court noted
that Mr. Gropper testified that he reviewed Dr. Stephen Bloomfield’s report
but determined it was not favorable to the defense. Id. Finding the opinion
weak, Mr. Gropper testified that he sought the opinion of a second expert, Dr.
Larry Neidigh. Id. The court recognized that Dr. Neidigh did not perceive
battered spouse syndrome as a viable defense because Petitioner was not
trapped in a relationship that she could not escape, and Dr. Neidigh found
Petitioner reported no symptoms consisted with Post Traumatic Stress
Disorder. Id. at 77.
The court also considered the fact that, thereafter, the state had
Petitioner examined by an expert, Dr. Meadows, who also did not provide a
favorable report. Id. at 77. The court was persuaded by Mr. Gropper’s
testimony that he decided to present an informal battered spouse syndrome
defense, avoiding a battle of the experts, something he perceived to be
17
detrimental to the defense. Id. The court was also persuaded by the testimony
of co-counsel for the defense, Janet Abel, who agreed that Dr. Meadows’ report
would not be good for the defense as he opined that battered spouse syndrome
was not relevant and the Petitioner’s actions appeared to be motivated by
anger and the defense expert opinions were comparatively not very strong. Id.
The court also found compelling the testimony of Dr. Meadows, who
attested that Petitioner showed good adaptation in the time leading up to the
offense, including continuing her advanced education in psychology, taking
care of her children, and adaptation in her occupational functioning, and never
sought any form of mental health treatment. Id. at 78. Of additional import to
the court, Dr. Meadows found significant Petitioner’s actions after the
shooting, including deliberately attempting to cover-up her actions by lying to
the dispatcher and the police, as well as her past history of manipulative,
impulsive, and deceitful behavior. Id. at 79.
Although Petitioner testified that she wanted her mother, Joan Darby,
to testify as well as her daughter, Nila Butler, Mr. Gropper attested that he
feared the impeachment of these witnesses as Petitioner did not tell her mother
about the abuse or any attack the night of the incident and Ms. Butler’s
testimony was not particularly helpful and was open to impeachment on cross-
18
examination. Id. at 79-80. Indeed, Mr. Gropper noted that both witnesses were
called during the first trial, and Petitioner was convicted of murder in the
second degree. Id. at 80. As such, the defense strategy was discussed, with
Petitioner agreeing not to do the trial the same way as the first one. Id. Mr.
Gropper concluded that the best approach was to present an informal battered
spouse syndrome defense relying solely on Petitioner’s testimony. Id. This
strategy proved more successful in that Petitioner was convicted of a lesser-
included offense, manslaughter, even though she shot her husband, hid the
gun, and lied to the police. Id.
The postconviction court found trial counsels’ testimony more credible
than that of Petitioner. Id. at 81. This Court has “no license to redetermine
credibility of witnesses whose demeanor has been observed by the state trial
court, but not by” this Court. Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842,
845 (11th Cir. 2011) (per curiam) (internal quotation marks omitted) (quoting
Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).
On August 31, 2020, the First DCA affirmed, and AEDPA deference is
due. (Doc. 23-47 at 2-3). Thus, 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
19
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. Counsel retained two experts to investigate
and consider battered spouse syndrome. The experts evaluated Petitioner and
issued reports. Defense counsels’ decision not to use these witnesses at trial
was within the wide range of professionally competent assistance. Counsel
elected to use an informal battered spouse syndrome defense, claim self-
defense, and rely solely on Petitioner’s testimony to convince the jury that her
actions did not constitute murder. Based on the verdict, the defense strategy
was successful. Indeed, Petitioner was convicted of manslaughter even though
she hid the gun, lied to the police, and admitted she was angry with the victim.
To prevail on a claim of ineffective assistance of counsel, a petitioner
must demonstrate both deficient performance and prejudice. The Court is not
20
convinced that trial counsel 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. 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 she received the ineffective assistance
of counsel based on counsel’s “failure to challenge conflicting report and failure
to engage expert witness to support defense.” Memorandum at 10. In ground
two of her amended postconviction motion, Petitioner alleged a similar claim
of ineffective assistance of counsel. The postconviction court granted an
evidentiary hearing on this ground.
The postconviction court addressed this ground finding:
During the hearing, Jason Gropper testified that
he did not retain a medical examiner expert in the
case. It was explained during the hearing that the
State notified the Defense that Dr. Giles would change
his testimony shortly before he testified. Both Jason
Gropper and Janet Abel testified that they were going
to use the change in the medical examiner’s testimony
to impeach his credibility. Jason Gropper testified that
he made a strategic decision to focus on his client’s
21
version of events and that in his opinion another
expert would not assist the Defense.
. . . .
In the instant case, Dr. Giles[’] testimony
changed slightly from the first trial. Mr. Gropper made
a tactical decision to use the change in testimony to
impeach the medical examiner’s credibility.
Consistently, Mr. Gropper testified that he did not
want to make the Defendant’s case a “battle of the
experts.” The Court finds that Mr. Gropper’s decision
under the facts of this case, not to retain an expert is
not outside the broad range of reasonably competent
performance under prevailing professional standards,
and thus, Trial Counsel was not ineffective in failing
to retain a medical expert.
(Doc. 23-40 at 71-72). The postconviction court also found Petitioner failed to
satisfy the prejudice prong of Strickland. The First DCA per curiam affirmed
the denial of relief without a written opinion. (Doc. 23-47 at 2-3).
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
22
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.
Her ineffectiveness claim is without merit because she has shown neither
deficient performance nor resulting prejudice. Accordingly, she is not entitled
to federal habeas relief on the claim in Ground Two.
Notably, defense counsel did not find out that Dr. Giles was changing his
testimony until shortly before trial. (Doc. 23-20 at 58-59). Ms. Abel asked that
the state be required to maker Dr. Giles available in the morning prior to trial.
Id. at 58. Ms. Abel advised the court that Dr. Giles was now going to testify
that in his expert opinion the shot that went into the back of the head of the
victim was the first shot and the shot to the neck was the second shot. Id.
Responding to defense counsel’s request, the trial court directed that the state
make Dr. Giles available at 9:30 the following morning for the purpose of
consulting with Ms. Able prior to the commencement of the trial at 11:00. Id.
at 61. Mr. Gropper confirmed that defense counsel would not be taking Dr.
Giles deposition. Id.
23
When Dr. Giles testified, Ms. Abel thoroughly cross-examined him. Id. at
177. Specifically, Ms. Abel referred to Dr. Giles change in testimony to impeach
his credibility. Id. at 178-82. Through effective cross-examination, Dr. Giles
admitted that his testimony concerning the first and second shot would be
inconsistent with the two shots being pow, pow, one immediately after the
other. Id. at 185. Without retaining a defense medical expert, defense counsel
effectively impeached Dr. Giles’ credibility, avoiding a battle of the experts,
something which Mr. Gropper wanted to avoid in presenting the defense. The
attorneys prepared for Dr. Giles testimony by interviewing him the morning of
his testimony, preparation within the broad range of reasonably competent
performance under prevailing professional standards. Petitioner has not met
the prejudice prong as the approach chosen by counsel certainly proved
effective. Counsel’s performance was not deficient nor does Petitioner meet the
prejudice prong of Strickland. As such, Petitioner is not entitled to relief on
Ground Two.
C. Ground Three
Next, the Court addresses Ground Three. Memorandum at 13. Petitioner
contends trial counsel was ineffective when counsel failed to object to the trial
court’s jury instruction on the use of deadly force as being confusing. Id.
24
Petitioner complains the instruction is internally inconsistent because the
court instructed she had no duty to retreat and had a right to stand her ground,
but then the court instructed that she had to attempt to avoid difficulty after
she armed herself.
The court, without objection from the defense, instructed:
In deciding whether the defendant was justified
in the use of deadly force, you must judge her by the
circumstances by which she was surrounded at the
time the force was used. The danger facing the
defendant need not have been actual; however, to
justify the use of deadly force, the appearance of
danger must have been so real that a reasonably
cautious and prudent person under the same
circumstances would have believed that the danger
could be avoided only through the use of that force.
Based upon appearances, the defendant must have
actually believed that the danger was real.
If the defendant was not engaged in an unlawful
activity and was attacked in any place she had a right
to be, she had no duty to retreat and had a right to
stand her ground and meet force with force, including
deadly force if she reasonably believed that it was
necessary to do so to prevent death or great bodily
harm to herself or another or to prevent the
commission of a forcible felony.
If you find that the defendant who because of
threats or prior difficulties with Solomon Stinson had
reasonable grounds to believe that she was in danger
of death or great bodily harm at the hands of Solomon
Stinson, then the defendant had the right to arm
herself. However, the defendant cannot justify
25
the use of deadly force, if after arming herself
she renewed her difficulty with Solomon
Stinson when she could have avoided the
difficulty, although as previously explained, if
the defendant was not engaged in any unlawful
activity and was attacked in any place where
she had a right to be, she had [n]o duty to
retreat.
(Doc. 23-22 at 7-9) (emphasis added).
Of note, on direct appeal, Petitioner raised the following claim: “[t]he
trial court’s justifiable use of deadly force jury instruction amounted to
fundamental error because the instruction deprived Appellant of her ‘Stand
Your Ground’ defense.” (Doc. 23-23 at 24). The First DCA summarily affirmed
the trial court. (Doc. 23-25). Therefore, the state court did not find fundamental
error.
When Petitioner raised the claim as one of ineffective assistance of
counsel, it too was rejected by the state courts. Petitioner exhausted this claim
by presenting it in ground three of the original motion for postconviction relief
and ground four of the amended motion and on appeal. Petitioner argued the
instruction was fundamentally flawed, confusing, and contained internally
inconsistent statements that negated the application to the defense presented
at trial. More directly, Petitioner argued it conflicted with the “Stand Your
Ground” defense.
26
At the evidentiary hearing, Mr. Gropper testified that because the first
trial was reversed on a jury instruction issue, everyone was hyper-sensitive to
the jury instructions. (Doc. 23-42 at 168). Mr. Gropper said they all made sure
they used acceptable standard instructions, and any other needed instructions.
Id. at 168-69. He found no reason to object to the instruction regarding the
justifiable use of deadly force. Id. at 169. He also deemed beneficial that the
instruction was given concerning the victim’s reputation of being a violent and
dangerous person even though the state objected to that particular instruction.
Id. at 170-71. Overall, Mr. Gropper did not consider objecting to the deadly
force jury instruction, a standard jury instruction. Id. at 209-11.
The postconviction court rejected Petitioner’s claim of ineffective
assistance of counsel:
As stated earlier, the Defendant raised the same
jury instruction issue, as one of fundamental error on
direct appeal. The Defendant relied on Floyd v. State,
151 So.3d 452 (Fla. 1st DCA 2014) to support her
position that the jury instructions were misleading
and confusing. However, in 2016, the Florida Supreme
Court quashed the decision in Floyd and held that
standard instruction 3.6(f) does not provide conflicting
instructions concerning the duty to retreat. State v.
Floyd, 186 So.3d 1018 (Fla. 2016). Specifically, the
instructions are not confusing, misleading, or
contradictory with regard to the duty to retreat when
there is a question of fact as to who was the initial
aggressor.
27
. . . .
When the jury instructions on justifiable use of
deadly force are taken together, the instructions
correctly indicate that a person cannot use deadly
force unless they are faced with an applicable danger
which they cannot otherwise avoid, short of making a
retreat. When the instructions are read as a whole and
not parsed apart into component pieces, the jury was
correctly apprised of the applicable law through the
standard jury instructions. Therefore, the jury
instructions were merely addressing both sides of a
factual distinction to be made by the jury. If a
defendant is not the initial aggressor, she has no duty
to retreat, but if she is the initial aggressor, then she
has a duty to retreat. This does not negate the “stand
your ground” law but merely explains it to the jury.
The ”stand your ground” law does not give a citizen the
right to use deadly force at whim.
(Doc. 23-40 at 74-75). The court continued, finding Petitioner failed to satisfy
the prejudice prong of Strickland. (Doc. 23-40 at 75-76). The First DCA
affirmed. (Doc. 23-47 at 2-3).
To the extent that the First DCA decided the claim on the merits,8 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
8 See Wilson, 138 S. Ct. at 1192.
28
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.
Alternatively, trial counsel “cannot be deemed deficient for failing to
object to standard jury instructions that have not been invalidated by the
Florida Supreme Court.” Hartley v. Sec’y, Fla. Dep’t of Corr., No. 1:18-cv-5-
AW-GRJ, 2021 WL 1608831, at *8 (N.D. Fla. Feb. 22, 2021), report and
recommendation adopted by 2021 WL 1087285, at *1 (N.D. Fla. Mar. 22, 2021)
(“But the instruction was a standard instruction, and it faithfully tracked the
language of the then-applicable Stand-Your-Ground law. Counsel did not
perform deficiently by not objecting. And the state court’s rejection of this claim
was not an unreasonable application of Strickland.”).9 Here, the trial court
delivered the Florida Supreme Court’s then-applicable standard jury
9 It was not until May 5, 2016, that the Florida Supreme Court set forth new
language that would become effective when the opinion became final. In re Standard
Jury Instructions in Criminal Cases-Report, 191 So. 3d 411 (Mem.) (Fla. 2016).
Counsel cannot be held ineffective for failure to anticipate changes in the law.
Winston v. United States, No. 8:12-cv-719-T-27MAP, 2013 WL 6198858, at *3 (M.D.
Fla. Nov. 27, 2013) (not reported in F.Supp.2d) (citing United States v. Ardley, 273
F.3d 991, 993 (11th Cir. 2001); Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir.
1994); Thompson v. Wainwright, 787 F.2d 1447, 1459 n.8 (11th Cir. 1986)).
29
instruction on the justifiable use of deadly force. See Florida Standard Jury
Instruction (Criminal) 3.6(f). The Florida Supreme Court upheld the
instruction. State v. Floyd, 186 So. 3d 1013, 1020-21 (Fla. 2016).
After the trial, on direct appeal, Petitioner raised the jury instruction
issue as fundamental error and the First DCA affirmed per curiam. Failure to
object to the instruction under these circumstances is not ineffective assistance
of counsel.
In the alternative, Petitioner is essentially complaining about a mere
error of state law. As such, “[i]t is not the province of a federal habeas court to
reexamine state-court determination on state-law questions.” Verne v. Jones,
No. 3:15cv-001-LC/CAS, 2017 WL 1190386, at *11 (N.D. Fla. March 10, 2017)
(not reported in F. Supp.), report and recommendation adopted by 2017 WL
1196440 (N.D. Fla. Mar. 29, 2017) (not reported in F. Supp.). As noted by
Respondents, “because whether a jury instruction is so flawed as to constitute
fundamental error is a question of state law, not federal law, this ground
should be denied.” Response at 23. Upon review, Ground Three is essentially
grounded on issues of state law.
Petitioner’s counsel was not ineffective for failure to object to an
instruction that correctly stated Florida law. See Reyes v. Fla. Dep’t of Corr.,
30
No. 22-CV-60567-RUIZ/STRAUSS, 2023 WL 3178563, at *14 (S.D. Fla. Apr.
11, 2023), report and recommendation adopted by 2023 WL 3172551, at *3 (S.D
Fla. May 1, 2023) (in Florida, standard instructions are presumed correct;
therefore, counsel did not perform deficiently by failing to object to a valid
Florida instruction); Floyd v. Fla. Dep’t of Corr., No. 3:15cv361-MCR/CAS,
2017 WL 4229054, at *9 (N.D. Fla. July 7, 2017) (not reported in F. Supp.)
(finding the petitioner failed to demonstrate that trial counsel was deficient in
failing to object to the standard jury instruction on justifiable use of force
approved by the Florida Supreme Court), report and recommendation adopted
by 2017 WL 4226141 (N.D. Fla. Sept. 22, 2017) (not reported in F. Supp.).
Based on all of the above, the Court concludes that Petitioner is not
entitled to habeas relief on his claim of ineffective assistance of counsel raised
in Ground Three. Nevertheless, in an abundance of caution, the Court will
grant a certificate of appealability as to Petitioner’s claim of ineffective
assistance of counsel for failure to object to the jury instructions on justifiable
use of deadly force and her failure to satisfy the deficient performance and
prejudice prongs of Strickland. See Tramel v. Sec’y, Fla. Dep’t of Corr., No.
3:19-cv-1071-MMH-MCR, 2022 WL 2818111, at *19 (M.D. Fla. July 19, 2022),
certificate of appealability granted, Tramel v. Sec’y Dep’t of Corr., et al., Case
31
22-12801 (Doc. 11-2) (11th Cir. Sept. 5 2023) (“Whether the district court erred
in holding that Tramel’s arguments in Ground 9 were foreclosed by the Florida
Supreme Court’s holding in State v. Floyd, 186 So. 3d 1013 (Fla. 2016)?”).
D. Ground Four
In her fourth ground, Petitioner raises a claim of ineffective assistance
of counsel for failure to challenge prosecutorial misconduct. Memorandum at
16. She complained that the State attacked her by asserting she was lying,
stating she had committed murder, and contending she was motivated by
anger and humiliation. Id. Petitioner noted that trial counsel made appropriate
objections, but the court failed to caution the State. Id. Petitioner raised a
comparable contention in ground one of the motion for postconviction relief and
ground one of her amended motion for postconviction relief and appealing the
decision to the First DCA.
To the extent that the First DCA decided the claim on the merits,10 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
10 See Wilson, 138 S. Ct. at 1192.
32
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.
Her ineffectiveness claim is without merit because she has shown neither
deficient performance nor resulting prejudice. Accordingly, she is not entitled
to federal habeas relief on the claim in Ground Four.
Although Petitioner brought a claim of prosecutorial misconduct on
direct appeal, the First DCA affirmed the Petitioner’s conviction. Petitioner
claims defense counsel performed deficiently by failing to object to improper
comments in rebuttal closing argument. The postconviction court rejected this
contention finding counsel did object to the comment on the Petitioner’s theory
of defense. (Doc. 23-40 at 70). As such, there was no deficient performance.
With regard to the remaining comments, the court found there was no
prosecutorial misconduct as the prosecutor’s argument was based on “a
reasonable inference from the evidence in closing argument.” Id. Of import,
33
there was evidence that Petitioner was angry about the condom being found in
the truck, that she did receive a sexually transmitted disease from her
husband, and after finding out, that she shot her husband and lied to the police
about the shooting. Id. Additionally, there was evidence that the victim was
shot in the back of the head, and he was involved in drugs. Id. The court
reasonably found that the prosecutor’s arguments constituted a fair and
reasonable inference from the evidence and were made in response to the
defense’s closing arguments. Id. The postconviction court held:
Trial Counsel cannot be found ineffective for failing to
object to comments by the prosecutors that are facts in
evidence and a reasonable inference drawn from the
evidence. The Defendant has failed to establish how
the arguments are impermissible as (1) prosecutorial
misconduct and (2) how the failure to object would
have had a reasonable probability that the outcome
would have been different.
Id.
Based on a review of the record, the Court concludes that the prosecutor
was commenting on the evidence; therefore, defense counsel was not ineffective
for failure to object. Regardless, Petitioner has not shown prejudice.
Immediately prior to the closing argument, the trial court instructed the jury
that what the lawyers says is not evidence. (Doc. 23-21 at 116). After the
closing argument, the court instructed the jury that it was their duty to decide
34
what evidence and testimony was reliable. (Doc. 23-22 at 11). After reviewing
the comments in context, along with the entirety of the evidence presented at
trial, the Court finds that Ground Four is due to be denied.
E. Ground Five
As Ground Five, Petitioner claims denial of her constitutional rights to
a fair trial when the trial court denied her motion for judgment of acquittal.
Memorandum at 19. She alleged comparable claims in ground two of the
motion for postconviction relief and ground three of the amended motion for
postconviction relief. The postconviction court summarily rejected this ground
finding, “[c]laims of trial court error are not cognizable in a rule 3.850 motion.”
(Doc. 23-40 at 71). In both ground two of the motion for postconviction relief
and ground three of the amended motion for postconviction relief Petitioner
raised claims of trial court error. (Doc. 23-28 at 14, 32-33). Petitioner did not
rely on the United States Constitution or its parts and made no mention of
Jackson v. Virginia, 443 U.S. 307 (1979) or its progeny to contend insufficiency
of the evidence in violation of the United States Constitution.
The Court finds Petitioner did not properly exhaust the claim raised in
Ground Five. Indeed, this ground should have been raised on direct appeal. As
noted by Respondents, “this ground should be denied or dismissed as
35
procedurally defaulted.” Response at 26 (footnote omitted). Because any future
attempt to exhaust it would be futile, the claim is procedurally defaulted. As
Petitioner is procedurally barred from raising Ground Five, she 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 Five is procedurally defaulted and the fundamental miscarriage of
justice exception is inapplicable. Petitioner’s procedural default bars this
Court’s review of Ground Five.
Alternatively, this claim is without merit. Mr. Gropper moved for
judgment of acquittal on the charge of murder in the second degree. (Doc. 23-
20 at 186-87). The court denied the motion. Id. at 187. The court also denied a
renewed motion for judgment of acquittal. (Doc. 23-21 at 101). After hearing
all of the evidence, the jury found Petitioner guilty of the lesser-included
offense of manslaughter despite her contention that she acted in self-defense.
(Doc. 23-15 at 171-72); (Doc. 23-22 at 44). After reviewing the evidence in the
light most favorable to the prosecution, a rational trier of fact could have found
36
Petitioner committed manslaughter. See Wilcox v. Ford, 813 F.2d 1140, 1143
(11th Cir.) (given that evidence may give some support to the defendant’s
theory of innocence, that is not sufficient to warrant habeas relief). Upon
review, the evidence at trial was sufficient to convict Petitioner of this
manslaughter offense and there was no denial of due process of law. As such,
Ground Five is due to be denied.
F. Ground Six
In Ground Six, Petitioner claims her counsel’s failure to object to Judge
Adrian Soud’s emotional breakdown amounted to ineffective assistance of
counsel. Memorandum at 21. Petitioner’s contention is that during the
sentencing hearing, Judge Soud became teary or emotional during the
testimony of the victim’s minor child. Id. Petitioner raised similar claims in
ground four of the motion for postconviction relief and ground six of the
amended motion for postconviction relief. (Doc. 23-28 at 17, 40-41). She argued
that she did not receive a fair and impartial sentencing hearing due to the trial
judge’s personal bias and prejudice based on the judge’s loss of objectivity. Id.
at 41. She urged the court to find that counsel had a duty to object or move for
a mistrial based on Judge Soud’s emotional state. Id. Petitioner complained
that counsel’s failure to object to the Judge Soud’s inappropriate behavior
37
prejudiced the defense as Judge Soud was emotionally biased, resulting in a
maximum sentence of thirty years. Id.
The circuit court granted an evidentiary hearing on this claim of
ineffective assistance of counsel. Petitioner withdrew this ground at the
evidentiary hearing and did not present evidence to support the claim. The
record shows that postconviction counsel announced at the evidentiary hearing
that the defense was abandoning the “emotional breakdown ground.” (Doc. 23-
42 at 354-55). Petitioner did not tell the court otherwise. In the Memorandum
in Support of Motion for Post-conviction Relief, there was a notice of
abandonment of this ground, noting the claim was not addressed at the
evidentiary hearing. (Doc. 23-40 at 45). The court, in denying this ground,
found that Petitioner withdrew the ground at the evidentiary hearing, did not
present evidence to support her contention, failed to meet her burden, and has
no entitlement to relief. (Doc. 23-40 at 76). The First DCA per curiam affirmed
on August 31, 2020. (Doc. 23-47).
To the extent that the First DCA decided the claim on the merits,11 the
Court will address the claim in accordance with the deferential standard for
11 See Wilson, 138 S. Ct. at 1192.
38
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.
Her ineffectiveness claim is without merit because she has shown neither
deficient performance nor resulting prejudice. Accordingly, she is not entitled
to federal habeas relief on the claim in Ground Six.
Assuming arguendo Judge Soud teared up during the testimony of the
victim’s minor child, this expression of sadness was in response to the child’s
testimony concerning the loss of his father, not based on the jury’s
determination that Petitioner was responsible for that loss, as that
determination had already been made at trial by the jury. See Response at 27.
There is nothing in the record supporting the contention that the court lost
impartiality, neutrality, or objectivity with regard to sentencing.
39
The record shows that the victim’s minor son testified at sentencing.
(Doc. 23-3 at 73). He prepared and read a statement for the court:
In dealing with my father’s death has been
difficult. And prior to him being killed, I had the
opportunity to see him when I wanted to, to call him
when I wanted to and spend time with him. This
makes me feel sad to not see him go to my basketball
games or for him not to pick me up from school or
spend time with him any other day. I feel really sad to
lose him because I never get to see him again. I miss
him dearly.
Me and him have the same birthday. We didn’t
spend time with each other on our birthdays. I cannot
explain how the pain that goes through – that goes
through me since his death. He was a good man and
always loved his family. He will always be a piece of
me. Our birthdays are the same. I will miss my daddy
always. Thank you, [J. S.].
Id. at 74.
Later, the court rejected the Petitioner’s request for a downward
departure, finding a downward departure inappropriate under the law. Id. at
95. The court did comment on the emotional nature of the sentencing
proceeding:
I also wanted to say for purposes of the record
that at times the sentencing hearing this afternoon
has been, very understandably and rightly, emotional.
Emotional from parents of the victim and the
defendant, emotional from siblings and other loved
40
ones and certainly children. And I will have more to
say about that in just a moment.
And while, understandably, the hearing has
been emotional given the nature of this case and all
that surrounds it, the Court must state for the record
that this Court is not vested with the luxury of
emotion. This Court must in every case, including this
one, consider the facts presented to it. Consider the
very skilled and seasoned argument of three lawyers
who were here this afternoon, all of whom are greatly
respected by the Court. And to consider the facts and
the law and the evidence and then, as best the Court
can, render a fair and lawful decision. That at times is
very difficult.
Id. at 95-96. The court continued:
Ms. Stinson, you’ve been previously adjudicated
guilty of manslaughter, that based upon a jury of your
peers finding you guilty of that lesser-included crime,
this Court does not take issue with their verdict, that
that is their prerogative under law and that is the
jury’s responsibility. This Court readily accepts the
jury’s verdict, does not question it whatsoever.
Evaluating, as courts must do in every case, not
only the crime with which you’ve been found guilty,
but, number one, the intention of your conduct within
the crime that has been committed as determined to
be manslaughter and, number two, the consequences
of your crime.
The consequence can be no more grave. It can be
no more severe. It can be no more enduring than the
death of a human being. And that is what is before the
Court, the death of a human being. The Court does not
live in a vacuum. The Court well recognizes, as
41
recognized by Mr. Stinson, Sr.’s, mother and family
members, that he may have been involved in conduct
involving illegal drugs or something of that sort, but
that does not remove from him the God-given
designation of a human being. His past criminal
conduct, his past episodes of violence perhaps against
you, none of that is lost on this Court. The Court is
ever familiar and aware of those circumstances, but on
the night Mr. Stinson, Sr. lost his life there is no
evidence before the Court that he was acting in a
manner that puts you in imminent danger. That was
presented to the jury and the jury in its verdict
rejected that argument. So be it.
Id. at 96-97.
The court then distinguished this case from other manslaughter cases,
where perhaps a punch was thrown, and the matter escalated or there was
conduct that resulted in unexpected, devastating consequences. Id. at 97. The
court found, “this goes to the end of the more aggravated aspects of
manslaughter of the conduct in which the jury determined you engaged was
grave and heinous in scope.” Id. at 98. The court also referenced the surviving
victims, the children who either testified or provided a letter, noting “their loss
is a tragic consequence of your choice.” Id. at 98. Of import, the court
acknowledged defense counsel’s request that the court consider a release date
that would allow Petitioner to meaningfully invest in the lives of her children.
42
Id. After noting that the jury did not find Petitioner acted in self-defense, the
court sentenced Petitioner to thirty years in prison.12 Id. at 99.
Alternatively, Petitioner failed to exhaust this ground due to
abandonment. As such, the claim is unexhausted and procedurally defaulted.
Petitioner has failed to show cause and prejudice or that failure to address the
claim will result in the fundamental miscarriage of justice.
Finally, Petitioner attempts to raise a claim of ineffective assistance of
postconviction counsel for abandoning this ground in the state courts.
Memorandum at 21. As there is no merit to the underlying claim that trial
counsel was ineffective for failure to object or move for mistrial, it does not
satisfy any exception. As Petitioner has failed to demonstrate the underlying
ineffective assistance of counsel claim is a substantial one, the narrow
exception set forth in Martinez, 566 U.S. at 17, is inapplicable and does not
excuse the procedural default of this claim. See Clark v. Comm. Ala. Dep’t of
Corr., 988 F.3d 1326, 1330 (11th Cir. 2021) (“Martinez is of no help because
[Petitioner] has not presented a ‘substantial claim’ that his trial counsel
rendered ineffective assistance[.]”), cert. denied, 142 S. Ct. 1134 (2022).
12 The Criminal Punishment Code Scoresheet shows a sentence computation
range of 127.8 months to thirty years. (Doc. 23-3 at 19-20). The sentence imposed by
the state court fell within that range.
43
Petitioner has failed to establish cause for the procedural default of her claim
raised in ground six and the Court finds Petitioner’s default is not excused.
G. Ground Seven
In her seventh and final ground, Petitioner raises a claim that the state
court deprived her of an unredacted copy of the record on appeal of the denial
of her postconviction motion, depriving her of her constitutional rights.13 The
First DCA directed that the clerk of the circuit court provide the First DCA
with an unredacted copy of the record on appeal. (Doc. 23-27 at 4). The circuit
court complied. Thus, the First DCA has before it an unredacted copy of the
record on appeal. Id. at 6-7. However, the First DCA directed that the Clerk
“maintain confidentiality of the unredacted record in accordance with Florida
Rule of Judicial Administration 2.420[,]” noting the record contains
confidential information. (Doc. 23-27 at 4). Of note, the record included three
forensic psychological examinations of Petitioner and other documents
considered to be sensitive and confidential.
Petitioner is complaining that the state postconviction court or clerk of
that court constitutionally erred when either the court or the clerk deprived
13 The state circuit court clerks are more extensively redacting information.
See Fla. Stat. § 119.071 (General exemptions from inspection or copying of public
records). See Response at 28 n.27.
44
Petitioner an unredacted copy of the record on appeal of the denial of the
postconviction motion. In doing so, she challenges a defect in the state
postconviction process. Thus, her assertions involve state law and procedure
not cognizable on federal habeas corpus review.
The Eleventh Circuit “has repeatedly held defects in state collateral
proceedings do not provide a basis for habeas relief.” Carroll v. Sec’y, Dep’t of
Corr., 574 F.3d 1354, 1365 (11th Cir. 2009) (citations omitted). “The reasoning
behind this well-established principle is straightforward: a challenge to a state
collateral proceeding does not undermine the legality of the detention or
imprisonment - i.e., the conviction itself – and thus habeas relief is not an
appropriate remedy.” Id. (citations omitted); Anderson v. Sec’y for Dep’t of
Corr., 462 F.3d 1319, 1330 (11th Cir. 2006) (per curiam); Quince v. Crosby, 360
F.3d 1259, 1261-62 (11th Cir. 2004); Spradley v. Dugger, 825 F.2d 1566, 1568
(11th Cir. 1987) (“Neither the state court’s failure to hold a hearing on
petitioner’s 3.850 motion nor its failure to attach the relevant portions of the
record in any way undermines the validity of petitioner’s conviction. Because
[the] claim[] goes to issues unrelated to the cause of petitioner’s detention, it
does not state a basis for habeas relief”) (citations omitted). As such, Petitioner
is not entitled to federal habeas relief on the claim in Ground Seven.
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The First DCA ordered and obtained an unredacted copy of the
postconviction record. Thus, the reviewing state court undertook its review
based on a complete record. As such, Petitioner is not entitled to habeas relief
on this ground.
Therefore, it is now
ORDERED AND ADJUDGED:
1. The Amended Petition (Doc. 16) with Memorandum (Doc. 17) is
DENIED, and this action is DISMISSED WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment denying the Amended
Petition with Memorandum and dismissing this case with prejudice.
3. If Petitioner appeals the denial of the Amended Petition with
Memorandum,14 the Court grants a certificate of appealability on
Ground Three (as to the Court’s denial of Petitioner’s claim of ineffective
assistance of counsel for failure to object to the jury instructions on justifiable
14 This Court should issue a certificate of appealability only if a petitioner makes "a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make
this substantial showing, Petitioner "must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong," Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that "the issues presented were 'adequate to deserve encouragement to proceed further,'"
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983)). Upon due consideration, this Court will deny a certificate of appealability,
except with respect to Ground Three.
46
use of deadly force and the Court’s determination that Petitioner failed to
satisfy the deficient performance and prejudice prongs of Strickland as to
Ground Three) and denies a certificate of appealability in all other
respects. Because the Court has determined that a certificate of appealability
is warranted as to Ground Three, Petitioner may proceed on appeal as a
pauper.
4, The Clerk of the Court is directed to close this case and terminate
any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 13th day of
October, 2023.
Yo:
fo fton—| |, 67am
BRIAN/I, DAVIS
United States District Judge
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Noni Jamil Stinson
Counsel of Record
47