# Henderson v. Secretary, Department of Corrections (Polk County)

> District Court, M.D. Florida · October 16, 2023

URL: https://www.frixlaw.com/law-library/cases/10114300

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 16, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10114300

## How later opinions describe it (automated extraction)

- stating that “[t]he state court’s application of clearly established federal law must be objectively unreasonable” for a federal habeas petitioner to prevail and that the state court’s “clear error” is insufficient
- noting that, for double-jeopardy purposes, federal courts are “bound by the Supreme Court of Florida’s interpretation of its legislative enactments”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JONAS HENDERSON, II,
Petitioner,

v. Case No. 8:20-cv-2370-KKM-SPF

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________________
ORDER
Jonas Henderson, II, a Florida prisoner, timely1 filed a pro se Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his state-court
convictions for resisting an officer with violence and battery on a law enforcement
officer. (Doc. 1.) Having considered the petition, (id.), and the response in
opposition, (Doc. 13), the petition is denied.2 Because reasonable jurists would not
disagree, Henderson is also not entitled to a certificate of appealability.
I. BACKGROUND
A. Procedural Background
A state-court jury convicted Henderson of resisting an officer with violence
and battery on a law enforcement officer. (Doc. 13-2, Ex. 5.) After finding that

1 A state prisoner has one year from the date his judgment becomes final to file a § 2254 petition.
See 28 U.S.C. § 2244(d)(1). This one-year limitation period is tolled during the pendency of a
properly filed state motion seeking collateral relief. See id. § 2244(d)(2). Henderson’s convictions
and sentences were affirmed on February 14, 2018. (Doc. 13-2, Ex. 12.) His judgment became final
90 days later, on May 15, 2018, when the time to petition the Supreme Court of the United States
for a writ of certiorari expired. See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002). After 105 days
of untolled time elapsed, Henderson filed his state postconviction motion on August 29, 2018.
(Id., Ex. 14.) The motion remained pending until the state appellate court’s mandate issued on
July 8, 2020. (Id., Ex. 19.) That gave Henderson until March 26, 2021, to file his § 2254 petition. He
met the deadline by filing his petition on October 2, 2020. (Doc. 1 at 19.) Thus, the petition is
timely.

2 Henderson did not file a reply.
Henderson qualified as a habitual felony offender and a prison releasee
reoffender, the state trial court sentenced him to concurrent terms of ten years’
imprisonment on each count. (Id, Ex. 7.) The state appellate court per curiam
affirmed the convictions and sentences. (Id., Ex. 12.) Henderson moved for
postconviction relief under Florida Rule of Criminal Procedure 3.850. (Id., Ex. 14.)
The state postconviction court denied the motion, and the state appellate court per
curiam affirmed the denial of relief. (Id., Exs., 15, 18.) This federal habeas petition

followed. (Doc. 1.)
B. Factual Background3
On the evening of November 22, 2014, Officer Michael Waldron responded
to a suspected burglary of a motel room in Lake Wales, Florida. (Doc. 13-2, Ex. 3,
at 143–44.) He entered the room, spoke to the victim, and unsuccessfully attempted
to collect fingerprints. (Id. at 144–45.) The victim told Officer Waldron that the
suspect had stolen several items and left behind a jacket. (Id.) Officer Waldron
returned to the Lake Wales police station and filled out an incident report. (Id. at
145.)
Approximately two hours later, Officer Waldron was dispatched to the
same location. (Id. at 146, 170.) The victim had called to report that a “suspicious
person” was knocking on the door and requesting the return of “items” that “had
been left in the . . . motel room.” (Id. at 146.) When Officer Waldron arrived at the
scene, he saw a four-door sedan parked “right in front” of the room. (Id. at 147.)
Henderson was in the front passenger seat; another male was in the driver seat.
(Id. at 147, 150.)

3 The factual background is based on the trial transcript.
Officer Waldron left the police cruiser and walked toward the sedan. (Id. at
148.) As he approached, Henderson exited the vehicle and became “very
confrontational,” saying, “What the f*** are you doing here? Why are you here?”
(Id.) Officer Waldron explained that he was “investigating a call.” (Id. at 149.)
Henderson said that some people “were fighting” nearby, and that if Officer
Waldron left “now,” he could still “catch them.” (Id.) There were no “reports of a
fight in that area at that time.” (Id. at 150.)

Officer Waldron approached the driver’s side of the vehicle. (Id.) When the
driver opened the door, Officer Waldron immediately smelled cannabis. (Id. at
150–51.) He ordered the driver to step out of the vehicle and told him he was being
detained. (Id. at 151.) The driver consented to a search of the car. (Id.) After
handcuffing the driver, Officer Waldron conducted the search. (Id. at 152.) He
found a “balled up” jacket in the passenger floorboard. (Id.) Underneath the jacket
were several packets of what Officer Waldron suspected to be K2, a form of
synthetic marijuana. (Id.)
During the search, Henderson was “pacing back and forth” outside the car
and “yelling about illegal search and seizure.” (Id. at 153.) By this time, Officer
Tiffany Holden had arrived and was trying to calm Henderson down. (Id.)
Henderson “kept backing away” from Officer Holden, and his arms “were
swinging back and forth.” (Id.) Officer Waldron decided to detain Henderson
based on “[t]he smell of cannabis coming from the vehicle” and the “suspected
K2” in the passenger floorboard. (Id. at 153–54.)
Officer Waldron approached Henderson, told him he was “being detained,”
and grabbed his left hand. (Id. at 154.) Henderson tried to “spin away” from Officer
Waldron, who responded by pushing him into a nearby vehicle to “get his left arm
behind his back.” (Id.) Officer Holden drew her Taser and told Henderson to “stop
resisting.” (Id.) Undeterred, Henderson elbowed Officer Waldron in the face and
ran off. (Id.) Officer Holden fired her Taser, but it “had no effect,” and Henderson
was able to “rip the prongs out” of his body. (Id. at 154–55.) Officer Waldron
pursued Henderson, pulled out his Taser, and said, “[S]top running or you’re
going to get ta[s]ed.” (Id. at 157.) Officer Waldron fired the Taser, but it had limited

effect—one of the prongs fell out, and Henderson was able to pull the other one
off his body. (Id.)
Officer Waldron tackled Henderson after the latter “got tangled up” on a
waist-high, chain-link fence. (Id. at 158.) As he was lying face down on the ground,
Henderson elbowed Officer Waldron in the face and chest. (Id.) Henderson “spun
around,” tried to push Officer Waldron away, and began punching him in the face.
(Id. at 158–59.) Officer Waldron again applied his Taser to Henderson, but it had
“no effect.” (Id.) Both men got up, and Henderson assumed a “boxer’s . . . stance.”
(Id. at 159.) Officer Waldron approached, and Henderson ran off. (Id. at 160.)
Eventually, Henderson “had nowhere else to go,” so he “turned around”
and “charged” at Officer Waldron. (Id. at 162.) Officer Waldron was able to pin
Henderson to the ground. (Id. at 164.) At this point, Officer Holden caught up with
the men. (Id.) She pulled out her gun, pointed it at Henderson, and said, “[S]top,
you are going to get shot; stop fighting.” (Id.) Henderson stopped “fighting as
hard,” and Officers Waldron and Holden were finally able to handcuff him. (Id. at
164–65.) The officers placed Henderson in a patrol car. (Id. at 165.) There, he made
several “confrontational statements” to Officer Waldron, including, “I whooped
your p**sy ass, you motherf*****. I whooped your ass. Uh-huh. Take these
handcuffs off.” (Id. at 165–66.)
II. STANDARD OF REVIEW UNDER SECTION 2254
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs this proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009).
Habeas relief under the AEDPA can be granted only if a petitioner is in custody
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2254(a). “The power of the federal courts to grant a writ of habeas corpus setting
aside a state prisoner’s conviction on a claim that his conviction was obtained in
violation of the United States Constitution is strictly circumscribed.” Green v. Sec’y,
Dep’t of Corr., 28 F.4th 1089, 1093 (11th Cir. 2022).
Section 2254(d) provides that federal habeas relief cannot be granted on a
claim adjudicated on the merits in state court unless the state court’s adjudication:
(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

For purposes of § 2254(d)(1), the phrase “clearly established Federal law”
encompasses the holdings only of the United States Supreme Court “as of the time
of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
This section “defines two categories of cases in which a state prisoner may obtain
federal habeas relief with respect to a claim adjudicated on the merits in state
court.” Id. at 404. First, a decision is “contrary to” clearly established federal law
“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.
Second, a decision involves an “unreasonable application” of clearly
established federal law “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. The AEDPA was meant “to prevent

federal habeas ‘retrials’ and to ensure that state-court convictions are given effect
to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002).
Accordingly, “[t]he focus . . . is on whether the state court’s application of clearly
established federal law is objectively unreasonable, and . . . an unreasonable
application is different from an incorrect one.” Id. at 694. As a result, to obtain relief
under the AEDPA, “a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103
(2011); see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (stating that “[t]he state
court’s application of clearly established federal law must be objectively
unreasonable” for a federal habeas petitioner to prevail and that the state court’s
“clear error” is insufficient).
When the last state court to decide a federal claim explains its decision in a
reasoned opinion, a federal habeas court reviews the specific reasons as stated in
the opinion and defers to those reasons if they are reasonable. Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018). But the habeas court is “not limited by the particular
justifications the state court provided for its reasons, and [it] may consider
additional rationales that support the state court’s determination.” Jennings v.
Secretary, Fla. Dep’t of Corr., 55 F.4th 1277, 1292 (11th Cir. 2022). When the relevant
state-court decision is not accompanied with reasons for the decision—such as a
summary affirmance without discussion—the federal court “should ‘look
through’ the unexplained decision to the last related state-court decision that does
provide a relevant rationale [and] presume that the unexplained decision adopted

the same reasoning.” Wilson, 138 S. Ct. at 1192. The state may “rebut the
presumption by showing that the unexplained affirmance relied or most likely did
rely on different grounds than the lower state court’s decision . . . .” Id.
For purposes of § 2254(d)(2), “it is not enough to show that ‘reasonable
minds reviewing the record might disagree about the finding in question.’” Brown
v. Davenport, 142 S. Ct. 1510, 1525 (2022) (quotations omitted). “An unreasonable
determination of the facts occurs when the direction of the evidence, viewed
cumulatively, was too powerful to conclude anything but the petitioner’s factual
claim.” Teasley v. Warden, Macon State Prison, 978 F.3d 1349, 1355 (11th Cir. 2020)
(internal quotation marks and alterations omitted). A state court’s findings of fact
are presumed correct, and a petitioner can rebut the presumption of correctness
afforded to a state court’s factual findings only by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
Even where a petitioner succeeds in rebutting the presumption, he must
show that the state court’s decision is “based on” the incorrect factual
determination. Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1035 (11th Cir.
2022). This is because a state-court decision may still be reasonable “even if some
of the state court’s individual factual findings were erroneous—so long as the
decision, taken as a whole, doesn’t constitute an ‘unreasonable determination of
the facts’ and isn’t ‘based on’ any such determination.” Id. (quoting Hayes v. Sec’y,
Fla. Dep’t of Corr., 10 F.4th 1203, 1224–25 (11th Cir. 2021) (Newsom, J., concurring)).
In addition to satisfying the deferential standard of federal court review of
a state-court adjudication, a federal habeas petitioner must exhaust his claims by
raising them in state court before presenting them in a federal petition. See 28

U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state
prisoner must give the state courts an opportunity to act on his claims before he
presents those claims to a federal court in a habeas petition.”). A petitioner satisfies
this exhaustion requirement if he fairly presents the claim in each appropriate state
court and alerts that court to the federal nature of the claim. Ward v. Hall, 592 F.3d
1144, 1156 (11th Cir. 2010).
The doctrine of procedural default provides that “[i]f the petitioner has
failed to exhaust state remedies that are no longer available, that failure is a
procedural default which will bar federal habeas relief, unless either the cause and
prejudice or the fundamental miscarriage of justice exception is established.”
Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). A petitioner shows cause for a
procedural default when he demonstrates “that some objective factor external to
the defense impeded the effort to raise the claim properly in the state court.”
Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). A petitioner demonstrates
prejudice by showing that “there is at least a reasonable probability that the result
of the proceeding would have been different” absent the constitutional violation.
Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). “A ‘fundamental
miscarriage of justice’ occurs in an extraordinary case, where a constitutional
violation has resulted in the conviction of someone who is actually innocent.” Id.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Henderson brings claims for ineffective assistance of trial counsel under the
Sixth Amendment. Under the well-known, two-part standard articulated in
Strickland v. Washington, 466 U.S. 668 (1984), to succeed, he must show both
deficient performance by his counsel and prejudice resulting from those errors. Id.

at 687.
The first part “requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. The lynchpin of this analysis is whether counsel’s conduct “was
reasonable considering all the circumstances.” Id. at 688. A petitioner establishes
deficient performance if “the identified acts or omissions [of counsel] were outside
the wide range of professionally competent assistance.” Id. at 690. A court “must
judge the reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.” Id. “[C]ounsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id.
The second part requires showing that the deficient performance prejudiced
the defense. Id. at 687. “An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.” Id. at 691. To demonstrate prejudice, a petitioner
must show “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.
“The question [on federal habeas review of an ineffective assistance claim]
‘is not whether a federal court believes the state court’s determination’ under the
Strickland standard ‘was incorrect but whether that determination was
unreasonable—a substantially higher threshold.’” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).

Consequently, federal petitioners rarely prevail on claims of ineffective assistance
of counsel because “[t]he standards created by Strickland and § 2254(d) are both
highly deferential, and when the two apply in tandem, review is doubly so.”
Richter, 562 U.S. at 105 (quotation and citations omitted).
IV. ANALYSIS
A. Ground One—Failure to Impeach Officer Waldron
Henderson contends that trial counsel was ineffective for failing to impeach
Officer Waldron with his deposition testimony. (Doc. 1 at 5–7.) At trial, Officer
Waldron testified that he tackled Henderson after the latter tripped over a fence.
(Doc. 13-2, Ex. 3, at 158.) Officer Waldron stated that, during this part of the
encounter, Henderson elbowed him in the face and chest and punched him in the
face. (Id. at 158–59.) At his deposition, however, Officer Waldron did not claim that
Henderson punched him. (Doc. 1 at 6.) Instead, he testified that Henderson “tried
to elbow him off and pushed his face.” (Id.) Henderson faults counsel for failing to
exploit the discrepancy between (1) Officer Waldron’s deposition testimony that
Henderson “pushed” his face and (2) Officer Waldron’s trial testimony that
Henderson punched his face. (Id. at 6–7.)
The state postconviction court rejected this claim. It held that, although
Officer Waldron “at his deposition may not have detailed his battery by
[Henderson] in as much detail as he did at trial,” the discrepancy in his statements
did not “necessarily constitute effective impeachment.” (Doc. 13-2, Ex. 15, at 2.)
The court then found that, even assuming “counsel was ineffective,” there was
“not a reasonable probability the result of [Henderson’s] trial would have been
different had trial counsel attempted to impeach the officer as suggested by

[Henderson].” (Id.) The court reasoned that the “[e]vidence present[ed] at trial
through the testimony of Officers Waldron and Holden was overwhelming as to
[Henderson’s] guilt of both resisting an officer with violence and battery o[n] a law
enforcement officer.” (Id. at 2–3.)
The rejection of this claim was reasonable. To show prejudice under
Strickland, Henderson must “establish a reasonable probability that, but for
counsel’s [failure to impeach Officer Waldron with his prior statements], the
outcome at trial would have been different.” Reed v. Sec’y, Fla. Dep’t of Corr., 767
F.3d 1252, 1261 (11th Cir. 2014). Ineffective assistance “will not be found merely
because other testimony might have been elicited from those who testified.” Fugate
v. Head, 261 F.3d 1206, 1220 (11th Cir. 2001). Likewise, “[c]laims that an attorney
should have cross-examined further on inconsequential matters do not establish
constitutionally deficient performance.” Johnson v. Alabama, 256 F.3d 1156, 1186
(11th Cir. 2001). The Eleventh Circuit has, however, “found ineffective assistance
where counsel failed to impeach the key prosecution witness with prior
inconsistent testimony [that] was much more favorable to the defendant.” Fugate,
261 F.3d at 1219 (collecting cases).
Henderson cannot show that he was prejudiced by the failure to impeach
Officer Waldron with his deposition testimony. According to Henderson, counsel
should have exploited the discrepancy between Officer Waldron’s testimony (1)
that Henderson “pushed” his face and (2) that Henderson punched his face. (Doc.
1 at 6–7.) But Officer Waldron’s deposition testimony was not “much more
favorable to” Henderson than his trial testimony. Fugate, 261 F.3d at 1219. Indeed,
regardless of whether he punched or pushed Officer Waldron, Henderson’s

conduct would plainly satisfy the elements of resisting an officer with violence
and battery on a law enforcement officer. See Larkins v. State, 476 So. 2d 1383, 1385
(Fla. 1st DCA 1985) (“Resisting an officer with violence consists of 1) knowingly 2)
resisting, obstructing or opposing a law enforcement officer 3) in the lawful
execution of any legal duty 4) by offering or doing violence to his person.”); Miller
v. State, 636 So. 2d 144, 150 (Fla. 1st DCA 1994) (“The elements of the offense of
battery on a law enforcement officer are: 1) knowingly 2) actually 3) intentionally
4) touching or striking 5) against the will 6) of a law enforcement officer 7) engaged
in the lawful performance of his duties.”).
Moreover, as the state postconviction court correctly found, there was
“overwhelming” evidence of Henderson’s guilt. (Doc. 13-2, Ex. 15, at 2–3.) Both
officers testified that Henderson repeatedly struck Officer Waldron while the latter
was attempting to detain him. And, once he was in the patrol car, Henderson
himself bragged about having “whooped” Officer Waldron. (Id., Ex. 3, at 165–66.)
Because the prosecution presented “substantial evidence” of Henderson’s guilt,
“there is not a reasonable probability that the outcome of the trial would have been
different had [] counsel impeached [Officer Waldron] with [his] prior testimony.”
Broadwater v. United States, 347 F. App’x 516, 520 (11th Cir. 2009). Accordingly,
Ground One is denied.4
B. Ground Two—Failure to Seek Exclusion of Testimony About K2
Henderson faults trial counsel for failing to seek exclusion of testimony
concerning the suspected K2 that Officer Waldron found in the vehicle. (Doc. 1 at
8–9.) During his search, Officer Waldron located several packets of what he
believed to be K2 in the passenger floorboard. (Doc. 13-2, Ex. 3, at 152.) Henderson

had been sitting in the front passenger seat, and Officer Waldron decided to detain
him based in part on his discovery of the suspected K2. (Id. at 147, 153–54.)
Henderson claims that counsel should have sought to exclude any testimony
about the suspected K2 on the ground that it was improper “prior bad act”
evidence. (Doc. 1 at 8–9.)
The state postconviction court rejected this claim. It held that any motion to
exclude “mention of the K2” would have been “meritless” because evidence of the
suspected narcotics “did not constitute a ‘prior bad act.’” (Doc. 13-2, Ex. 15, at 3.)
The court explained that the suspected K2 “was found on the passenger side of the
vehicle after a consensual search of the vehicle and constituted a primary reason
[Henderson] was being detained.” (Id.) Thus, the suspected K2 was “a reason for
[Henderson’s] detention,” not a prior bad act, and “any argument that mention of
the K2 should be suppressed would have been without merit.” (Id.)

4 Henderson also claims that trial counsel was ineffective for not “[f]amiliariz[ing] [t]hemselves
[w]ith [t]he [c]ase.” (Doc. 1 at 5.) But, other than the failure to impeach Officer Waldron with his
deposition testimony, Henderson does not explain how counsel’s alleged lack of preparation
affected the trial. Thus, Henderson’s vague, unsupported assertion that counsel was unprepared
is insufficient to support an ineffective-assistance claim. See Tejada v. Dugger, 941 F.2d 1551, 1559
(11th Cir. 1991) (holding that “conclusory allegations unsupported by specifics” are insufficient
to establish an ineffective-assistance claim).
The rejection of this claim was reasonable. “[A]lthough the issue of
ineffective assistance . . . is one of constitutional dimension,” a court “must defer
to the state’s construction of its own law when the validity of the [ineffective-
assistance] claim . . . turns on state law.” Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295
(11th Cir. 2017). Here, the state court found that counsel was not ineffective for
failing to seek exclusion of the suspected K2 because, under Florida law, the
evidence “did not constitute a ‘prior bad act.’” (Doc. 13-2, Ex. 15, at 3.) Thus, the

state court “already has told us how the issue[] would have been resolved under
state law had [counsel] done what [Henderson] argues [they] should have done.”
Herring v. Sec’y. Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005). This Court
is bound to defer to that determination.
Even if the issue were the Court’s to decide, the ineffective-assistance claim
would fail because the testimony in question was not prior bad act evidence.
“[E]vidence of a crime that is inseparable from the crime charged or evidence
which is inextricably intertwined with the crime charged is not [prior bad act]
evidence.” Zamora v. State, 60 So. 3d 510 (Fla. 3d DCA 2011). Both of the offenses
with which Henderson was charged required the prosecution to prove that Officer
Waldron was “engaged in the performance of a lawful duty” when Henderson
attacked him. Taylor v. State, 740 So. 2d 89, 90 (Fla. 1st DCA 1999). As the state court
explained, the discovery of the suspected K2 was “a primary reason [Henderson]
was being detained.” (Doc. 13-2, Ex. 15, at 3.) Thus, Officer Waldron’s testimony
about the suspected K2 was admissible because it was “relevant” to establish his
performance of a lawful duty and, therefore, “an inseparable part of the [offenses]
at issue.” Thompson v. State, 76 So. 3d 1050, 1053 (Fla. 1st DCA 2011).
For all these reasons, the state court reasonably concluded that Henderson’s
counsel was not ineffective for failing to seek exclusion of the suspected K2. Thus,
Ground Two is denied.
C. Ground Three—Failure to Argue Double Jeopardy
Henderson contends that trial counsel was ineffective for failing to argue
that his right against double jeopardy was violated because he was convicted of
both resisting an officer with violence and battery on a law enforcement officer.

(Doc. 1 at 11.) He contends that, because these two offenses allegedly contain
“identical elements” and the prosecution sought to prove them through “identical
acts of violence,” counsel should have “file[d] a motion to dismiss” based on “the
Double Jeopardy [C]lause.” (Id.)
The state postconviction court rejected this claim, explaining that it was
“without merit” under State v. Henriquez, 485 So. 2d 414 (Fla. 1986). (Doc. 13-2, Ex.
15, at 3.) Henriquez reaffirmed that, under Florida law, resisting an officer with
violence and battery on a law enforcement officer “are separate offenses.” 485 So.
2d at 415; accord State v. Carpenter, 417 So. 2d 986, 988 (Fla. 1982) (“While resisting
arrest with violence and battery on a law enforcement officer are similar offenses,
and while they usually happen in conjunction with one another, one does not
necessarily involve the other.”). In reaching that conclusion, the Henriquez court
asked whether “a comparison of the statutory elements, without regard to the facts
as alleged in the information or as adduced at trial, reveals that each offense
requires proof of an element that the other does not.” 485 So. 2d at 415. The court
answered that question in the affirmative. It explained that “one could obstruct or
oppose a law enforcement officer by threatening violence and still at the same time
not be committing a battery on the law enforcement officer.” Id. Likewise, “the
placement of an unwanted hand on an officer’s arm qualifies as a battery, although
no resistance or obstruction occurs.” Id. Thus, Henriquez held that because the two
offenses were “separate and distinct” “based on their statutory elements,” “the
intent of the legislature clearly [was] to provide for separate convictions and
punishments.” Id. at 415–16.
The state postconviction court found that any double-jeopardy argument

would have been meritless under Henriquez, and that therefore counsel was not
ineffective for failing to raise it. (Doc. 13-2, Ex. 15, at 3.) That conclusion was
reasonable. The Double Jeopardy Clause bars “multiple punishments for the same
offense.” United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009). “[W]here the
same act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304 (1932). The prohibition on double
jeopardy is a matter of federal constitutional law. See Missouri v. Hunter, 459 U.S.
359, 368 (1983) (“[W]e are not bound by the Missouri Supreme Court’s legal
conclusion that these two statutes violate the Double Jeopardy Clause.”). But, in
applying the Double Jeopardy Clause, this Court is bound by the Florida Supreme
Court’s “construction of that State’s statutes,” including its determination of
whether certain criminal offenses have the same elements. Id.; see also Tarpley v.
Dugger, 841 F.2d 359, 364 (11th Cir. 1988) (“In th[e] [double-jeopardy] context, we
are bound to accept the Florida court’s construction of that State’s statutes.”).
As the state postconviction court noted, the Florida Supreme Court has held
that resisting an officer with violence and battery on a law enforcement officer are
“separate and distinct” offenses “based on their statutory elements.” Henriquez,
485 So. 2d at 415. That determination binds this Court. See Deloach v. Wainwright,
777 F.2d 1524, 1525 (11th Cir. 1985) (noting that, for double-jeopardy purposes,
federal courts are “bound by the Supreme Court of Florida’s interpretation of its
legislative enactments”). And because the Court is bound to accept that the two

offenses do not contain the same elements, it necessarily follows that no double-
jeopardy violation occurred in this case. Thus, the state court reasonably
concluded that counsel was not ineffective for failing to raise Henderson’s
meritless double-jeopardy argument. See, e.g., Reese v. Inch, No. 4:19-cv-401-MW-
MJF, 2021 WL 1132222, at *17 (N.D. Fla. Mar. 4, 2021) (“Because [petitioner’s]
proposed double jeopardy argument would have failed, counsel was not
ineffective for failing to raise it.”), adopted by 2021 WL 1118734 (N.D. Fla. Mar. 24,
2021); Aranda v. Dep’t of Corr., No. 20-80628-CV, 2021 WL 681691, at *5 (S.D. Fla.
Jan. 20, 2021) (holding that “counsel reasonably could have concluded that any
double jeopardy challenge to any of the charges would have failed” based on the
Florida courts’ “bind[ing]” determination that the relevant offenses contained
“separate elements of proof”), adopted by 2021 WL 680707 (S.D. Fla. Feb. 22, 2021).
Ground Three is denied.
D. Ground Four—Instruction on Statements Made by a Defendant
Henderson contends that trial counsel was ineffective for asking the trial
court to give the standard jury instruction on statements made by a defendant.
(Doc. 1 at 13-14.) The prosecution did not introduce any statements made by
Henderson during custodial interrogation. The jury did, however, hear testimony
about his outburst in the patrol vehicle—“I whooped your p**sy ass, you
motherf*****. I whooped your ass. Uh-huh. Take these handcuffs off.” (Doc. 13-2,
Ex. 3, at 165–66.) During the charge conference, Henderson’s counsel asked the
trial court to give the standard instruction on “[d]efendant’s statements.” (Id. at
225.) That instruction informs the jury that a “statement” “made by the defendant
outside of court” “should always be considered with caution and be weighed with

great care to make certain it was freely and voluntarily made.” Fla. Std. Jury Instr.
(Crim.) 3.9(b). The court noted that the instruction likely did not “appl[y]” in this
case because it “deal[t] with more like custodial and interrogation-type
statements.” (Doc. 13-2, Ex. 3, at 225.) But, seeking to “err on the side of caution,”
the court agreed to read it to the jury. (Id. at 226.)
Henderson appears to contend that the reading of this instruction invited
the jury to consider the “prejudicial statements” he made in the patrol vehicle.
(Doc. 1 at 14.) As a result, the jury allegedly received an “inculpating impression
[of his] character.” (Id.) Henderson claims that, had counsel not sought the
instruction, “[t]here is a good probability that the outcome of his proceeding
would have been different.” (Id.)
The state postconviction court rejected this claim on the ground that “[i]t
[was] purely speculative as to whether the inclusion of the instruction had any
effect on the outcome in this case.” (Doc. 13-2, Ex. 15, at 3.) The court explained
that, in the light of “the overwhelming evidence as to [Henderson’s] guilt,” “there
[was] not a reasonable probability the result of [his] trial would have been different
had the instruction not been given.” (Id.)
The rejection of this claim was reasonable. To show prejudice under
Strickland, Henderson must “establish a reasonable probability that, but for [the
reading of the challenged instruction], the outcome at trial would have been
different.” Reed, 767 F.3d at 1261. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “It
is not enough for the [petitioner] to show that the error[] had some conceivable
effect on the outcome of the proceeding.” Id. at 693. Henderson’s unsupported

speculation about the instruction’s effect on the jury does not come close to
“affirmatively prov[ing] prejudice” under Strickland. Id. There is no basis to
conclude that the jury would have disregarded Henderson’s statements had the
instruction been omitted. And, setting those statements aside, the prosecution
presented “overwhelming evidence” of Henderson’s guilt. (Doc. 13-2, Ex. 15, at 3.)
Thus, the state court reasonably concluded that Henderson failed to satisfy
Strickland’s prejudice prong. See Blackshear v. Sec'y, No. 3:19-cv-1115-TJC-MCR,
2023 WL 2242548, at *8 (M.D. Fla. Feb. 27, 2023) (“While Petitioner may be correct
about the main purpose of the instruction [on statements by a defendant] and that
it may have been unnecessary to include it in his case [because he did not make a
custodial statement], his allegation that its inclusion affected the outcome of his
trial is speculative at best.”).
Ground Four is denied.
E. Ground Five—Denial of Motion for Mistrial
Finally, Henderson argues that the trial court violated his rights under the
Fifth, Sixth, and Fourteenth Amendments by denying his motion for mistrial. (Doc.
1 at 16–17.) Henderson’s counsel moved for a mistrial based on (1) Officer
Waldron’s testimony that he believed Henderson was trying to kill him, and (2)
Officer Waldron’s use of the phrase “p**sy ass” when recounting Henderson’s
outburst in the patrol vehicle. (Doc. 13-2, Ex. 3, at 167–68.) The court denied the
motion, explaining that neither matter rose “to the level of mistrial.” (Id. at 168.)
Respondent correctly contends that this claim is procedurally defaulted
because Henderson failed to fairly present it on direct appeal. (Doc. 13 at 15–16.)
In his appellate brief, Henderson challenged the denial of his motion for mistrial,

but he did not “make the state [appellate] court aware that the claim” raised
“federal constitutional issues.” Jimenez v. Fla. Dep’t of Corr., 481 F.3d 1337, 1342
(11th Cir. 2007). His brief contained no reference to the United States Constitution
or any other source of federal law. Nor did Henderson “label[] the claim ‘federal.’”
Baldwin v. Reese, 541 U.S. 27, 32 (2004). Instead, he relied entirely on Florida
caselaw and statutes to support his argument that the trial court erroneously
denied his motion for mistrial. (Doc. 13-2, Ex. 10, at 10–12.)
As a result, Henderson did not fairly present Ground Five to the state
appellate court. He cannot return to state court to present the claim in a second
direct appeal. See Fla. R. App. P. 9.140(b)(3) (stating that a notice of appeal must be
filed within 30 days of the rendition of sentence). Despite this failure, the claim is
technically exhausted. State-court remedies are exhausted “when they are no
longer available, regardless of the reason for the unavailability.” Shinn v. Ramirez,
142 S. Ct. 1718, 1732 (2022) (quoting Woodford v. Ngo, 548 U.S. 81, 92–93 (2006)). But
Ground Five is procedurally defaulted because it was “not presented to the state
courts ‘consistent with [the State’s] own procedural rules’” requiring the claim to
be brought on direct appeal. Id. (quoting Edwards v. Carpenter, 529 U.S. 446, 453
(2000)). Henderson does not show that an exception applies to overcome the
default. See id. Accordingly, Ground Five is barred from federal habeas review.
CERTIFICATE OF APPEALABILITY
A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Instead, a
district court or court of appeals must first issue a certificate of appealability
(COA). Id. “A [COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To obtain a
COA, Henderson must show that reasonable jurists would find debatable both the
merits of the underlying claims and the procedural issues he seeks to raise. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Henderson has not made the requisite
showing. Finally, because Henderson is not entitled to a COA, he is not entitled to
appeal in forma pauperis.
It is therefore ORDERED that Henderson's Petition for Writ of Habeas
Corpus (Doc. 1) is DENIED. The CLERK is directed to enter judgment against
Henderson and in Respondent's favor and to CLOSE this case.
ORDERED in Tampa, Florida on October 16, 2023.

athryn’ Kimball Mizelle
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10114300. Public record. Not legal advice.