stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
How later courts described this case
- stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
- “Martinez is of no help because [Petitioner] has not presented a ‘substantial claim’ that his trial counsel rendered ineffective assistance[.]”
- equitable tolling “is a remedy that must be used sparingly”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DANNY HAMMOND,
Petitioner,
v. Case No. 3:20-cv-1243-BJD-JBT
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Danny Hammond, an inmate of the Florida penal system,
initiated this action on November 2, 2020, by filing a Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition; Doc.
1) through counsel. Petitioner challenges a 2015 state court (St. Johns County,
Florida) judgment of conviction for robbery with a weapon.1 He raises five
grounds for relief in the Petition. Respondents submitted a Response to
Petition (Response; Doc. 13). They also submitted an Appendix with Exhibits
1 For purposes of reference to pleadings, the Court will cite the document and
document page numbers assigned by the Court’s electronic docketing system.
1-19.2 See Doc. 14-1 through 14-2. Petitioner filed a brief in reply (Reply; Doc.
20).
In addition, on June 7, 2021, Petitioner filed a pro se Motion Requesting
Leave of the Court to File an Addendum (Doc. 9). On July 13, 2021, the Court
granted Petitioner’s Notice Withdrawing His Request to Proceed Pro Se (Doc.
11) and struck the pro se motion seeking leave to file an addendum (Doc. 9).
See Order (Doc. 12). After Respondents filed their Response (Doc. 13), through
counsel, Petitioner sought leave to amend his petition (Doc. 15). Respondents
objected (Doc. 16). The Court denied the motion as untimely filed. See Order
(Doc. 17). The Court struck a pro se motion for reconsideration (Doc. 21). See
Order (Doc. 22).
On July 13, 2023, Petitioner, through counsel, filed a Motion for
Reconsideration (Motion; Doc. 23)), asking the Court to grant the Motion, and
to accept Petitioner amended claims nunc pro tunc to June 2021 as adopted by
counsel, and to order Respondents to respond to the merits of Grounds Six and
Seven (Doc. 23-1). Respondents filed a Response to Motion for Reconsideration
(Doc. 25). On September 20, 2023, the Court granted the counseled Motion and
2 The Court will refer to the exhibits in the Appendix (Doc. 14) as “Ex.” Where
provided, the page numbers referenced are the Bates stamp numbers at the bottom
of each page.
2
accepted Petitioner’s amended claims (Grounds Six and Seven) nunc pro tunc
to June 10, 2021, the date of the filing of the proposed addendum. See Order
(Doc. 26).
Thereafter, Respondents filed their Supplemental Response to Petition
as to Grounds 6 and 7 of the June 10, 2021, Addendum (Supplemental
Response; Doc. 27). Petitioner filed a Reply to Response (Supplemental Reply;
Doc. 28). This case is ripe for review.
II. Relevant Procedural History
On May 18, 2015, the State of Florida charged Petitioner by amended
information in Case No. 14001541CFMA with robbery with a weapon. Ex. 1 at
40. After a jury trial in May 2015, he was convicted as charged and sentenced
to thirty years in prison as a prison release reoffender. Id. at 122-29.
Petitioner appealed, raising four issues: (1) whether the trial court erred
in failing to grant Defendant’s motion for mistrial; (2) whether the court erred
in admitting the “gun” into evidence over the Defendant’s objection; (3)
whether the trial court erred in failing to grant Defendant’s motion for new
trial; and (4) whether the court erred in sentencing Defendant as a prison
releasee reoffender and in sentencing Appellant for a first-degree felony. Ex. 4
at i. Additional briefing followed. Ex. 5; Ex. 6. On May 17, 2016, the Fifth
3
District Court of Appeal (Fifth DCA) per curiam affirmed Petitioner’s
conviction and sentence. Ex. 7. The mandate issued on June 10, 2016. Ex. 8.
Petitioner filed a pro se motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850 on May 26, 2016.3 Ex. 9. He filed an
amended motion on August 8, 2016. Ex. 10. He filed a second amended motion
on October 4, 2016. Ex. 11 at 5-104. On November 2, 2016, he filed an
addendum. Id. at 107-12. On May 18, 2017, Petition filed an addendum to his
second amended motion (Addendum). Id. at 113-16. The circuit court entered
an order directing the state to respond to the second amended motion and the
Addendum. Id. at 118-19. The state filed a response to the second amended
motion and initial addendum. Id. at 136-51. Petitioner filed a reply. Id. at 152-
65. The court ordered the state to respond to the Addendum. Id. at 180-81. The
state responded, addressing ground eleven. Id. at 182-83.
In an interim order entered August 22, 2018, the circuit court denied the
portion of ground three concerning counsel’s effectiveness in challenging the
description of the gun, grounds four, five, six, seven, nine, and ten of the second
3 In reciting the procedural history, the Court identifies the date of Petitioner’s
filings giving him the benefit of the mailbox rule. See Houston v. Lack, 487 U.S. 266,
276 (1988) (mailbox rule).
4
amended motion. Id. at 188-308. With regard to grounds one, two, the portion
of ground three pertaining to potential exculpatory witnesses, eight, and
eleven, the court stated it would schedule an evidentiary hearing. Id. at 211.
The court appointed counsel for the evidentiary proceedings. Id. at 320. On
March 11, 2019, the circuit court conducted an evidentiary hearing and both
Petitioner and his trial counsel, Thomas Cushman, testified. Id. at 498-587. On
April 4, 2019, the court entered its Final Order Denying Motion for Post-
Conviction Relief Following Evidentiary Hearing. Id. at 333-492. In its orders
resolving the grounds raised by Petitioner, the court set forth the applicable
law regarding postconviction claims of ineffective assistance of counsel, citing
Strickland v. Washington, 466 U.S. 668 (1984). Ex. 11 at 189-90, 335. The court
attached portions of the record to its orders. See Attachments: Ex. 11 at 213-
308, Appendix A - Appendix J; Ex. 11 at 349-92, Appendix A – Appendix J.
Petitioner appealed. Ex. 11 at 493. Briefing followed. Ex. 12; Ex. 13; Ex.
14. On November 12, 2012, the Fifth DCA per curiam affirmed. Ex. 15. The
mandate issued on December 6, 2019. Ex. 16.
III. 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.
5
Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to
grant an evidentiary hearing, a federal court must consider whether such a
hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro v.
Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834
F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the
applicant’s factual allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.
The pertinent facts of this case are fully developed in the record before the
Court. Because the Court can “adequately assess [Petitioner’s] claim[s] without
further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.
2003), an evidentiary hearing will not be conducted.
IV. 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,
6
and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.
34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of
final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”
Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation
marks omitted)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,
Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need
not issue a written opinion explaining its rationale in order for the state court’s
decision to qualify as an adjudication on the merits. See Harrington v. Richter,
562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is
unaccompanied by an explanation, the United States Supreme Court has
instructed:
[T]he federal court should “look through” the
unexplained decision to the last related state-court
decision that does provide a relevant rationale. It
should then presume that the unexplained decision
adopted the same reasoning.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be
rebutted by showing that the higher state court’s adjudication most likely
relied on different grounds than the lower state court’s reasoned decision, such
7
as persuasive alternative grounds that were briefed or argued to the higher
court or obvious in the record it reviewed. Id. at 1192, 1196.
If the claim was “adjudicated on the merits” in state court, § 2254(d) bars
relitigation of the claim unless the state court’s decision (1) “was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States;” or (2) “was based on
an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98.
The Eleventh Circuit describes the limited scope of federal review pursuant to
§ 2254 as follows:
First, § 2254(d)(1) provides for federal review for
claims of state courts’ erroneous legal conclusions. As
explained by the Supreme Court in Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),
§ 2254(d)(1) consists of two distinct clauses: a
“contrary to” clause and an “unreasonable application”
clause. The “contrary to” clause allows for relief only
“if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523
(plurality opinion). The “unreasonable application”
clause allows for relief only “if the state court identifies
the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Id.
8
Second, § 2254(d)(2) provides for federal review for
claims of state courts’ erroneous factual
determinations. Section 2254(d)(2) allows federal
courts to grant relief only if the state court’s denial of
the petitioner’s claim “was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2). The Supreme Court has not yet defined §
2254(d)(2)’s “precise relationship” to § 2254(e)(1),
which imposes a burden on the petitioner to rebut the
state court’s factual findings “by clear and convincing
evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.
Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192
L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court factual
determination is not unreasonable merely because the
federal habeas court would have reached a different
conclusion in the first instance.’” Titlow, 571 U.S. at --
-, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,
301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential
review under § 2254(d) generally is limited to the record that was before the
state court that adjudicated the claim on the merits. See Cullen v. Pinholster,
563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an
examination of the state-court decision at the time it was made”).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,
134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a
9
state court blundered in a manner so ‘well understood and comprehended in
existing law’ and ‘was so lacking in justification’ that ‘there is no possibility
fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,
562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.
Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were
adjudicated on the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).
B. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before bringing a §
2254 habeas action in federal court, a petitioner must exhaust all state court
remedies that are available for challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly
present[]” every issue raised in his federal petition to the state’s highest court,
either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,
351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state
prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
10
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a
state prisoner must exhaust available state remedies,
28 U.S.C. § 2254(b)(1), thereby giving the State the
“‘“opportunity to pass upon and correct” alleged
violations of its prisoners’ federal rights.’” Duncan v.
Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d
865 (1995) (per curiam) (quoting Picard v. Connor, 404
U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To
provide the State with the necessary “opportunity,”
the prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144
L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner’s failure to properly exhaust available state remedies
results in a procedural default which raises a potential bar to federal habeas
review. The United States Supreme Court has explained the doctrine of
procedural default as follows:
Federal habeas courts reviewing the constitutionality
of a state prisoner’s conviction and sentence are guided
by rules designed to ensure that state-court judgments
are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our
system of federalism. These rules include the doctrine
of procedural default, under which a federal court will
not review the merits of claims, including
constitutional claims, that a state court declined to
11
hear because the prisoner failed to abide by a state
procedural rule. See, e.g., Coleman,[4] supra, at 747–
748, 111 S. Ct. 2546; Sykes,[5] supra, at 84–85, 97 S.
Ct. 2497. A state court’s invocation of a procedural
rule to deny a prisoner’s claims precludes federal
review of the claims if, among other requisites, the
state procedural rule is a nonfederal ground adequate
to support the judgment and the rule is firmly
established and consistently followed. See, e.g.,
Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–
1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558
U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417
(2009). The doctrine barring procedurally defaulted
claims from being heard is not without exceptions. A
prisoner may obtain federal review of a defaulted
claim by showing cause for the default and prejudice
from a violation of federal law. See Coleman, 501 U.S.,
at 750, 111 S. Ct. 2546.
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.
4 Coleman v. Thompson, 501 U.S. 722 (1991).
5 Wainwright v. Sykes, 433 U.S. 72 (1977).
12
Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)
(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[6]
Under the prejudice prong, [a petitioner] must show
that “the errors at trial actually and substantially
disadvantaged his defense so that he was denied
fundamental fairness.” Id. at 1261 (quoting Carrier,
477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the
petitioner can establish that a fundamental miscarriage of justice, the
continued incarceration of one who is actually innocent, otherwise would
result. The Eleventh Circuit has explained:
[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).
6 Murray v. Carrier, 477 U.S. 478 (1986).
13
Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that
it is more likely than not that no reasonable juror would have convicted him’
of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be
credible,’ a claim of actual innocence must be based on reliable evidence not
presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting
Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,
allegations of actual innocence are ultimately summarily rejected. Schlup, 513
U.S. at 324.
C. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants the effective
assistance of counsel. That right is denied when a defense attorney’s
performance falls below an objective standard of reasonableness and thereby
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per
curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland, 466
U.S. at 687).
To establish deficient performance, a person
challenging a conviction must show that “counsel’s
representation fell below an objective standard of
reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.
Ct. 2052. A court considering a claim of ineffective
assistance must apply a “strong presumption” that
14
counsel’s representation was within the “wide range”
of reasonable professional assistance. Id., at 689, 104
S. Ct. 2052. The challenger’s burden is to show “that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.
With respect to prejudice, a challenger must
demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.
It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.”
Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be
“so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id., at 687, 104 S. Ct.
2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of
any iron-clad rule requiring a court to tackle one prong of the Strickland test
before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part
Strickland test must be satisfied to show a Sixth Amendment violation, “a
court need not address the performance prong if the petitioner cannot meet the
prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,
1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
15
expect will often be so, that course should be followed.” Strickland, 466 U.S. at
697.
A state court’s adjudication of an ineffectiveness claim is accorded great
deference.
“[T]he standard for judging counsel’s representation is
a most deferential one.” Richter, 562 U.S. at ---, 131 S.
Ct. at 788. But “[e]stablishing that a state court’s
application of Strickland was unreasonable under §
2254(d) is all the more difficult. The standards created
by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review
is doubly so.” Id. (citations and quotation marks
omitted). “The question is not whether a federal court
believes the state court’s determination under the
Strickland standard was incorrect but whether that
determination was unreasonable — a substantially
higher threshold.” Knowles v. Mirzayance, 556 U.S.
111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)
(quotation marks omitted). If there is “any reasonable
argument that counsel satisfied Strickland’s
deferential standard,” then a federal court may not
disturb a state-court decision denying the claim.
Richter, 562 U.S. at ---, 131 S. Ct. at 788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the
deference to counsel’s performance mandated by Strickland, the AEDPA adds
another layer of deference — this one to a state court’s decision — when we are
considering whether to grant federal habeas relief from a state court’s
16
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).
V. Grounds
A. One-Year Limitations Period and Ground Six
Respondents calculate the Petition (Grounds One through Five) was
timely filed. Response at 5. The Petition (Grounds One through Five) was
timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).
On September 20, 2023, the Court granted the counseled Motion and
accepted Petitioner’s amended claims (Grounds Six and Seven) nunc pro tunc
to June 10, 2021, the date of the filing of the proposed addendum. See Order
(Doc. 26). Of import, claims asserted in an amendment must be filed within the
one-year statute of limitation. 28 U.S.C. § 2244(d). See Farris v. United States,
333 F.3d 1211, 1215 (11th Cir. 2003). Rule 15(c) (2) of the Federal Rules of Civil
Procedure, instructs: “An amendment of a pleading relates back to the date of
the original pleading when ... the claim ... asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set forth or attempted to
be set forth in the original pleading.” Mayle v. Felix, 545 U.S. 644, 649 (2005)
17
(quoting Rule 15(c)(2)). If an amendment differs in both time and type from the
original claims, it does not relate back. Id. at 650.
Ground Seven is the same as Ground Two and is deemed timely filed as
it relates back to the original petition. See Supplemental Response at 1, 11, 23.
As such, the Court will address Grounds Two and Seven together.
Ground Six, however, does not relate back to the original petition and is
untimely filed. See Supplemental Response at 7-9. As such, Petitioner, through
counsel, seeks equitable tolling for Ground Six. Supplemental Reply at 5. He
argues equitable tolling should apply as the record reveals, “the undersigned
counsel has not disputed that he filed an application for federal habeas relief
before Petitioner had a chance to review it.” Id. at 7. Of note, this is not a
circumstance where Petitioner was unaware of the claim, as counsel admits
that he originally vetted the claim and found it lacked sufficient merit for
inclusion in the Petition. Id.
Therefore, Ground Six is untimely and due to be dismissed unless
Petitioner can establish equitable tolling of the statute of limitations is
warranted. The AEDPA is applicable to Petitioner’s case as his conviction
became final after April 24, 1996, the effective date of AEDPA. Smith v. Jones,
256 F.3d 1135, 1143 (11th Cir. 2001) (by its terms, the state of limitations
18
provision in AEDPA bars any petition filed more than a year after the
conviction became final at the conclusion of direct appeal, absent exceptions
and qualified tolling periods). The AEDPA one-year limitation period is subject
to equitable tolling. Holland v. Florida, 560 U.S. 631, 651-52 (2010).
Petitioner carries the burden of persuasion. He must satisfy a two-
pronged test; he must demonstrate “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances stood in his way and
prevented timely filing.” Id. at 649 (quotation marks omitted). See Christmas
v. Judd, No. 20-14431, 2021 WL 4860927, at *1 (11th Cir. Oct. 19, 2021) (per
curiam) (not reported in Fed. Rptr.) (same). Equitable tolling is an
extraordinary remedy, only employed in “rare and exceptional circumstances
and typically applied sparingly.” Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216,
1221 (11th Cir. 2017) (quotations and citation omitted). See Downs v. McNeil,
520 F.3d 1311, 1318 (11th Cir. 2008) (equitable tolling “is a remedy that must
be used sparingly”). This heavy burden is not easily surmounted. See Brown v.
Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008) (per curiam) (recognizing the
Eleventh Circuit “has held that an inmate bears a strong burden to show
specific facts to support his claim of extraordinary circumstances and due
diligence”) (citation omitted).
19
In order to give due consideration to the contention that counsel filed the
federal habeas petition before Petitioner had a chance to review it, the Court
has reviewed the record and it shows that the Petition (Doc. 1 at 25) contains
an Oath which states: “I DECLARE UNDER PENALTY OF PERJURY that I
have read the foregoing, and that the information contained herein is true and
correct.” The declaration contains the electronic signature of Danny
Hammond. Id. The certificate of service under the declaration is dated
November 3, 2020. Id. The document is also electronically signed by counsel.
Id.
The Court concludes that under 28 U.S.C. § 1746 this declaration
constitutes an unsworn declaration under penalty of perjury. Thus, the Court
will consider the Petition to have been reviewed by Petitioner, and it follows
that Petitioner was aware that Ground Six was not contained within the
Petition that was to be filed by counsel. Moreover, Petitioner was aware of the
claim before the filing of the federal Petition, and it was not included in the
Petition.
Based on the record before the Court, Petitioner has not presented any
justifiable reason why the dictates of the one-year limitation period should not
be imposed upon him. The record demonstrates Petitioner had ample time to
20
exhaust state remedies and prepare and file the grounds he wished to raise.
He has not shown extraordinary circumstances stood in his way and prevented
him from timely filing Ground Six. Thus, he has failed to demonstrate that he
is entitled to equitable tolling.
In conclusion, because Petitioner has not shown an adequate reason why
the dictates of the one-year limitation period should not be imposed upon him,
he is not excused from complying with the applicable time constraints. 28
U.S.C. § 2244(d). As such, the Court will dismiss Ground Six with prejudice as
untimely.
Alternatively, to the extent Ground Six is properly before this Court, the
Court will give AEDPA deference to the state court’s ruling. Petitioner alleges
his trial counsel was ineffective for failing to adequately investigate his case
(Doc. 23-1 at 1-8). Petitioner raised a comparable claim in ground three of his
second amended postconviction motion. Ex. 11 at 13-18. The postconviction
court summarily denied part of this ground. Ex. 11 at 192-94. In its decision,
the court found unsupported a claim of law enforcement tampering. Id. at 193.
Also, the court found claims concerning ownership of the gun contradictory and
unsupported. Id. After an evidentiary hearing, the court denied the remainder
of this ground. The court held: “[b]ased on the testimony presented at the
21
evidentiary hearing, Mr. Cushman had no reason to believe that Mr. Clarkson
had valuable information. Accordingly, he was not deficient, nor has Defendant
established prejudice and the remaining portion of ground three will be
denied.” Id. at 342-43. The Fifth DCA affirmed. Ex. 15.
At this stage, Petitioner is challenging a portion of the court’s decision
with regard to alleged law enforcement tampering (Doc. 23-1 at 1-8), or
replacing an air soft pistol with a Daisy Powerline BB gun (model 340). The
state court soundly rejected this contention finding it meritless. The court
opined:
During argument on Defendant’s motion for new
trial, there was discussion over whether to call the gun
a “BB gun” or “airsoft gun.” (Transcript of Proceedings,
June 19, 2015, p.22, attached hereto as Appendix A).
The narrative in the sworn complaint provides that
“deputies later recovered the gun which turned out to
be a black plastic air soft pistol.” (Sworn Complaint,
p.3, attached hereto as Appendix B). The Court
observes that the exhibit attached to Defendant’s
motion demonstrates that the St. Johns County
Sheriff’s Office identified the gun as a “Black plastic
Daisy Powerline brand (Model 340) (S/N
1620139183U) . 177/4.5 mm BB gun w/ a black plastic
magazine.” The Court finds that the record indicates
the officer’s initial impression was that the gun was an
air soft pistol and upon further examination
determine[d] the exact make and model. It is not
surprising that the officers could not immediately
identify the gun as a “Black plastic Daisy Powerline
brand (Model 340) (S/N 162013639183U) . 177/4.5mm
22
BB gun w/ a black plastic magazine.” The Court finds
that the facts presented by Defendant do not support
a claim that law enforcement tampered with evidence.
Ex. 11 at 192-93.
The Court finds the state’s court’s determination consistent with federal
precedent. Although the Fifth DCA’s decision is unexplained, it is entitled to
AEDPA deference. Petitioner has failed to demonstrate that the state court’s
adjudication of the claim resulted in a decision that was contrary to, or involved
an unreasonable application of Strickland, or that it was based on an
unreasonable determination of the facts in light of the evidence presented in
the state court. Petitioner is not entitled to habeas relief on Ground Six.
B. Ground One
As Ground One, Petitioner alleges trial counsel rendered ineffective
assistance for failure to object when the trial court applied an incorrect legal
standard in ruling on Petitioner’s motion for a new trial. Petition at 3. The
record includes a Motion for New Trial filed by Petitioner’s retained counsel,
Mr. Cushman. Ex. 1 at 112-18. In paragraphs 1 through 8, he urged the court
to find that the verdict was contrary to the law and weight of the evidence. Id.
at 112-14. In particular, he asserted “that it is not conceivable that a jury could
find that the plastic BB pellet pistol was a ‘weapon’ under the law, wherein the
23
Jury Instructions clearly defined a ‘weapon’ as ‘any object that could be used
to cause death or inflict serious bodily harm’.” Id. at 112-13.
The trial court conducted a hearing on the motion for new trial. Ex. 3 at
3-24. Mr. Cushman argued that the verdict is contrary to the weight of the
evidence. Id. The court announced its ruling:
THE COURT: All right. Let me go ahead and
make my finding regarding the weapon. I’ll find that
the hard plastic – are we calling it a BB gun or are we
calling it an airsoft gun?
MR. CUSHMAN: Well, I think it probably
should be called an airsoft gun.
THE COURT: All right.
MR. FEREBEE: I don’t know –
THE COURT: Regarding the –
MR. FEREBEE [the prosecutor]: The object
that’s in evidence.
THE COURT: All right. The object that’s in
evidence, that within a – even though there was no
testimony regarding its use or what injuries it could
cause, that that was a – that that was a – that that
was still sufficient evidence to go to the jury for the
jury to make a factual determination as to whether it
could be a weapon for the circumstance of this case or
not.
24
Id. at 22-23. The court rendered its final decision stating, “[s]o, in whole,
making those factual findings about those three issues, I would go ahead and
deny the motion for a new trial.” Id. at 23.
On direct appeal, Petitioner raised the issue of whether the trial court
erred in failing to grant Petitioner’s motion for new trial with respect to
whether the plastic BB pellet pistol was a weapon contending the verdict was
against the weight of the evidence. Ex. 4 at 17-20. The Fifth DCA per curiam
affirmed. Ex. 7.
Respondents contend that Ground One is unexhausted and procedurally
defaulted as it was not included in the postconviction motion. Response at 10,
13-14. The Court finds Petitioner did not exhaust the claim raised in Ground
One. Because any future attempt to exhaust it would be futile, the claim is
procedurally defaulted. As Petitioner is procedurally barred from raising this
claim, he must demonstrate cause and prejudice. Petitioner has failed to
establish cause and prejudice or that a fundamental miscarriage of justice will
result if the Court fails to address the claims 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 raised in Ground One is procedurally defaulted and the
25
fundamental miscarriage of justice exception is inapplicable. Petitioner’s
procedural default bars this Court’s review of the claim raised under Ground
One.
Petitioner acknowledges procedural default but argues his procedural
default should be excused based on the reasoning of Martinez because he did
not have post-conviction counsel and his claim has some merit. Reply at 1-2.
Apparently, Petitioner contends that the procedural default was caused by the
lack of post-conviction counsel, the collateral proceeding was the first
opportunity to raise the procedurally defaulted claim, and the procedurally
defaulted claim has some merit. See Martinez 566 U.S. at 17.
Martinez provides a narrow, equitable, non-constitutional exception to
the holding in Coleman. Thus, Petitioner must demonstrate the claim raised
has some merit. Martinez, 566 U.S. at 14. Upon review, the underlying
ineffectiveness claim at issue lacks merit; therefore, Petitioner has not
demonstrated that he can satisfy an exception to the procedural bar. Petitioner
cannot demonstrate prejudice under Strickland because the underlying issue
(the trial court erred in denying the motion for new trial) was presented to the
5th DCA and the state appellate court denied relief. Given that the 5th DCA
affirmed the trial court’s decision on the motion for new trial, it is not
26
reasonably probable that any objection by counsel to the trial court’s
application of an incorrect legal standard would have resulted in a different
outcome. The 5th DCA did not find the underlying matter reversible,
apparently remaining unconvinced that the verdict was against the weight of
the evidence.
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). Petitioner has failed to
establish cause for the procedural default of Ground One and the Court finds
Petitioner’s default is not excused.
Alternatively, with respect to the merits of Ground One, Respondents
point to the evidence at trial, that Petitioner displayed a weapon and implied
it was dangerous through his actions and words. Response at 11-13. See
Gartner v. State, 118 So. 3d 273, 277 (Fla. 5th DCA 2013) (citing Santiago v.
State, 900 So. 2d 710, 711 (Fla. 3d DCA 2005)) (implying a weapon is dangerous
27
or deadly by words or actions is sufficient to reach the jury). “[T]he ‘weight of
the evidence’ standard evaluates whether a greater amount of credible
evidence supports an acquittal.” Sanchez v. Sec’y, Fla. Dep’t of Corr., No. 3:16-
cv-1400-J-34MCR, 2019 WL 1558742, at *23 (M.D. Fla. Apr. 10, 2019) (not
reported in F. Supp.) (quoting Velloso v. State, 117 So. 3d 903, 905 (Fla. 4th
DCA 2013)). The record shows there was no evidence to rebut the victim and
other witnesses. Here the verdict was not contrary to the weight of the
evidence. As such, no matter if counsel had objected, there is no reasonable
probability the circuit court would have granted the motion for new trial. As
such, Petitioner is not entitled to habeas relief.
C. Grounds Two and Seven
As Ground Two and Ground Seven, Petitioner alleges he received the
ineffective assistance of counsel based on counsel’s failure to object to improper
introduction of hearsay testimony in violation of Florida’s Best Evidence Rule
(Doc. 23-1 at 8-14). Petition at 11-15. Petitioner contends his counsel performed
deficiently by failing to object to Officer Harvey’s inadmissible hearsay
testimony concerning the contents of the surveillance video, rendered
inadmissible under Florida’s Best Evidence Rule.
28
In ground nine of his second amended postconviction motion, Petitioner
alleged a comparable claim of ineffective assistance of counsel. Ex. 11 at 35-41.
The postconviction court summarily denied the claim that counsel was
ineffective for failing to object to Officer Harvey’s testimony concerning the
surveillance video. Id. at 204-207. The court held:
Officer Harvey’s testimony is uncontradicted
that law enforcement sought to secure the video
recording but the manager was unable to copy it and
it was overwritten. The government did not act in bad
faith and there was no violation of the Best Evidence
Rule. Thus, Defendant’s trial counsel did not act
unreasonably in failing to object. Moreover, Officer
Harvey merely testified that what he saw on the video
was consistent with what he was told by the victim; he
did not identify the Defendant. Thus even if his
counsel was ineffective for failing to object, there was
no prejudice demonstrated by Defendant. Thus,
ground nine will be summarily denied.
Id. at 206-207.
The record shows the court employed the Strickland two-pronged
standard of review; to prevail on a claim of ineffective assistance of counsel, a
petitioner must demonstrate both deficient performance and prejudice. As
such, Petitioner cannot satisfy the “contrary to” test of 28 U.S.C. § 2254(d)(1)
as the state court applied the two-pronged Strickland standard. Next, the
Court considers whether the state court unreasonably applied that principle to
29
the facts or premised its adjudication on the claim on an unreasonable
determination of the facts.
The court found the government did not act in bad faith when it failed to
secure the video recording. Evidence at trial supports this ruling. Ex. 2 at 100-
102. An attempt was made to retrieve the recording, but the manager was
unable to copy it for the police. The manager stated an intention to provide it
to a detective, but the detective retired, apparently without receiving the
recording as it was not in the state’s evidence. Thereafter, when Office Harvey
went back to the store to attempt to retrieve the recording it had been
overwritten. Even when assuming arguendo defense counsel was somehow
deficient in failing to object, given the evidence presented at trial, Petitioner
was not prejudiced by trial counsel’s failure to object. Two eyewitnesses
identified Petitioner. The victim as well as a customer testified as to
Petitioner’s actions. 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 claims raised in
Ground Two and Ground Seven.
30
The Fifth DCA affirmed. Ex. 15. Thus, to the extent that the Fifth 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.
Applying the look-through presumption set forth in Wilson, the Court
finds the state court’s ruling is based on a reasonable determination of the facts
and a reasonable application of the law. Petitioner has not demonstrated that
the state court unreasonably applied Strickland or unreasonably determined
the facts. Thus, the Fifth DCA’s decision, although unexplained, is entitled to
AEDPA deference. As the AEDPA standard is quite difficult to meet, and
Petitioner has failed to meet that standard, Petitioner is not entitled to habeas
relief on Ground Two and Ground Seven.
D. Ground Three
As Ground Three, Petitioner alleges trial counsel rendered ineffective
assistance for failure to move in limine and/or object to the introduction of
inadmissible character evidence in the form of Lacie Self’s testimony that she
and Petitioner were at a dope house, they were planning to buy dope, and that
31
she and Petitioner were high on dope. Petition at 15. Petitioner argues this was
inadmissible bad character testimony which should have either been
addressed through a motion in limine or by objections lodged at trial. Id. at 15-
16. He maintains that this testimony permitted the jury to convict based on
bad character and to impute a motive for the robbery, drug purchases. Id. at
16.
Respondents contend that Ground Three is unexhausted and
procedurally defaulted as it was not included in the postconviction motion.
Response at 14, 16. The Court finds Petitioner did not exhaust the claim raised
in Ground Three. Because any future attempt to exhaust it would be futile, the
claim is procedurally defaulted. As Petitioner is procedurally barred from
raising this claim, he must demonstrate cause and prejudice. Petitioner has
failed to establish cause and prejudice or that a fundamental miscarriage of
justice will result if the Court fails to address the claims 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 raised in Ground Three is procedurally defaulted
and the fundamental miscarriage of justice exception is inapplicable.
32
Petitioner’s procedural default bars this Court’s review of the claim raised
under Ground Three.
Petitioner acknowledges his default of the claim but argues his
procedural default should be excused based on the reasoning of Martinez
because he did not have post-conviction counsel and his claim has some merit.
Reply at 6-7. Accordingly, Petitioner must demonstrate the claim raised has
some merit. Martinez, 566 U.S. at 14. Upon review, the underlying
ineffectiveness claim at issue lacks merit; therefore, Petitioner has not
demonstrated that he can satisfy an exception to the procedural bar.
As noted by Respondents, Mr. Cushman testified at the evidentiary
hearing as to his strategy of dealing with Ms. Self. Response at 15-16. Mr.
Cushman said he wanted to impeach Ms. Self as much as possible, recognizing
that Petitioner “was obviously not hanging around with the cream of the crop
as far as, you know, women go, so she got a drug problem, she’s hanging at a
drug house, she’s the one who comes up with the gun, but otherwise there’s no
connection to the gun between that and Danny Hammond[.]” Ex. 11 at 549.
Mr. Cushman’s intent was to portray Ms. Self as unreliable and simply out to
obtain a deal by testifying in exchange for early release from probation. Id. Mr.
33
Cushman pressed Ms. Self during cross-examination until she demonstrated
her frustration and discontent. Id. at 550.
Upon inquiry, Mr. Cushman explained this strategy:
Well, the decision was if we move for a mistrial
what would we get the next time. And I found that
repeat trials have a way of being programmed and
nobody makes any mistakes the second time around.
So I thought we had done a pretty decent job of
impeaching her. And the man with the – actually had
the gun, no connection to Danny, so I thought we
should not move for a mistrial and go with what we
had because I didn’t think the testimony was going to
be better the second time around.
Id. at 551. He stated he adopted this strategy based on his training and
experience, being Board certified. Id.
There is a strong presumption that an experienced trial counsel’s
performance is not ineffective. At the time of his representation of Petitioner,
Mr. Cushman was an experienced, Board certified criminal defense attorney.
“When courts are examining the performance of an experienced trial counsel,
the presumption that his conduct was reasonable is even stronger.” Hardwick
v. Benton, 318 F. App’x 844, 846 n.2 (11th Cir. 2009) (per curiam) (quoting
Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000)).
Under these circumstances, Mr. Cushman did not perform deficiently.
He had a strategy in mind, wanting to paint Ms. Self as self-interested, willing
34
to say anything to get a deal from the state. Regardless, even assuming
arguendo deficient performance by counsel, Petitioner has not shown resulting
prejudice. Petitioner has not shown a reasonable probability exists that the
outcome of the case would have been different if counsel had objected or filed
a motion in limine.
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). Petitioner has failed to
establish cause for the procedural default of Ground Three and the Court finds
Petitioner’s default is not excused.
E. Ground Four
As Ground Four, Petitioner alleges trial counsel rendered ineffective
assistance by failing to motion in limine and/or object to the introduction of
inadmissible character evidence. Petition at 17. In ground two of his second
amended postconviction motion, Petitioner alleged a similar claim of
35
ineffective assistance of counsel. Ex. 11 at 11-13. The postconviction court
considered Petitioner’s claim:
In ground two [including the addendum],
Defendant alleges his trial counsel was ineffective for
failing to move for a mistrial after Lacie Self gave
“unsolicited testimony” regarding Defendant
committing additional robberies. At trial, Ms. Self
testified that the smoke shop “wasn’t the only place”
Defendant robbed. Defendant alleges prejudice in that
this tainted the jury and deprived the Defendant of a
fair trial. Defendant contends that the outcome of the
proceeding would have been different had counsel
moved for a mistrial. In its response, the State argues
that during cross-examination, trial counsel
attempted to paint Ms. Self as an unreliable drug user
and that it was therefore “sound trial strategy to turn
Ms. Self’s additional accusations around as more
reason to believe her testimony [was] fantastical.” The
State asserts that Ms. Self was on probation and her
testimony could have been discredited by trial counsel
as her embellishing to gain favor, which the State
alleges was trial counsel’s strategy during cross-
examination and closing arguments. The Court
observes that although defense counsel is entitled to
broad deference regarding trial strategy, a finding that
some action or inaction by defense counsel was tactical
is generally inappropriate without an evidentiary
hearing. Santos v. State, 152 So. 3d 817, 819 (Fla. 5th
DCA 2014). Thus, ground two will be scheduled for
evidentiary hearing.
Ex. 11 at 191-92 (footnote omitted).
At the evidentiary hearing, Mr. Cushman testified concerning his trial
strategy. He was asked if any other witnesses testified as to “additional
36
robberies[.]” Id. at 550. He responded he did not recall such testimony. Id. He
stated any additional robberies were not mentioned in closing argument and
did not become a feature of the trial. Id. Mr. Cushman testified that he avoided
asking Ms. Self about additional robberies. Id. Mr. Cushman explained his
strategy of avoiding a mistrial and focusing on impeaching Ms. Self. Id. at 551.
The postconviction court in its Final Order addressed Petitioner’s
contention of ineffective assistance of counsel. The court began by laying out
the claim:
In ground two [including addendum], Defendant
alleges Mr. Cushman was ineffective for failing to
move for a mistrial after the State’s witness, Lacie
Self, gave “unsolicited testimony” regarding
Defendant committing additional robberies. At trial,
Ms. Self made an unsolicited comment that that the
smoke shop “wasn’t the only place” Defendant robbed.
Defendant alleges prejudice in that this tainted the
jury and deprived him of a fair trial. In its response,
the State argued that during cross-examination, trial
counsel attempted to paint Ms. Self as an unreliable
drug user and that it was therefore “sound trial
strategy to turn Ms. Self’s additional accusations
around as more reason to believe her testimony [was]
fantastical.” The State asserted that Ms. Self was on
probation and her testimony could have been
discredited by trial counsel as her embellishing to gain
favor, which the State alleged was trial counsel’s
strategy during cross-examination and closing
arguments.
Id. at 338-39 (footnote omitted).
37
Next, the court noted Mr. Cushman’s testimony concerning his strategy
to impeach Ms. Self as much as possible and paint her as unreliable. Id. at 339.
This included highlighting the fact that Ms. Self’s intention was to get off
probation by snitching. Id. Mr. Cushman testified that he believed his cross-
examination was effective. Id. He also attested that he did not move for a
mistrial because if it were granted, “Ms. Self would be much better prepared
during a subsequent trial, and his cross-examination would not be effective.”
Id. Mr. Cushman explained that he did not believe Ms. Self’s statements about
additional robberies would be given much credibility based on her testimony
showing she was not very credible. Id. at 339-40. Not wanting to highlight her
statements, he did not seek a curative instruction. Id. at 340.
The court held:
The Court finds that Mr. Cushman did not act
outside the broad range of reasonable assistance under
prevailing professional standards in failing to move for
a mistrial on the basis of Ms. Self’s comment, and
there is not a reasonable probability that the result in
the case would have been different if Mr. Cushman
would have moved for a mistrial. The Court finds Mr.
Cushman effectively impeached Ms. Self’s credibility
during cross-examination by emphasizing her drug
use and the fact that she implicated Defendant in
hopes of avoiding jail. (Transcript of Proceedings, May
27, 2015, attached hereto as Appendix D). Mr.
Cushman is correct that had a mistrial been granted,
Ms. Self would have been better prepared for cross-
38
examination in a subsequent trial to improve her
credibility. The Court notes that Ms. Self’s unsolicited
statements about Defendant’s alleged other robberies
came across as combative and undermined her already
diminished reliability. The Court further notes that
Mr. Cushman’s strategy of not asking for a curative
[instruction] was reasonable so as to not highlight the
comment. Further, Defendant has failed to establish
that had Mr. Cushman moved for a mistrial that it
would have been granted, or if granted, that the
outcome of his case would have been different. The
Court finds that defendant has not established
deficient performance or prejudice and ground two will
be denied.
Id. at 340-41. The Fifth DCA per curiam affirmed the denial of relief without a
written opinion. Ex. 15.
As such, the Court will address the claim in accordance with the
deferential standard for federal court review of state court adjudications. After
a review of the record and the applicable law, the Court concludes that the
state court’s adjudication of this claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceedings. Thus,
Petitioner is not entitled to relief on the basis of this claim.
Alternatively, Petitioner’s ineffectiveness claim is without merit because
he has shown neither deficient performance nor resulting prejudice.
39
Accordingly, he is not entitled to federal habeas relief on the claim in Ground
Four. Petitioner’s counsel was experienced and testified as to his strategy at
the evidentiary hearing. Here there is a strong presumption that his
performance was within the bounds of reasonable professional assistance. And,
notably, 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)).
Not only has Petitioner failed to satisfy the performance prong, but he
also failed to satisfy the prejudice prong of Strickland. There is no reasonable
probability that, but for counsel’s alleged unprofessional errors, the result of
the proceeding would have been different. For it to be different, the Court
would have to assume that the even if counsel had objected to the statements
about additional robberies it would have made a difference in the case.
Regardless of Ms. Self’s statements, the record shows the state presented
substantial evidence as to Petitioner’s commission of the robbery for which he
was charged. As such, Petitioner cannot satisfy the prejudice prong of
Strickland.
40
F. Ground Five
As Ground Five, Petitioner alleges trial counsel rendered ineffective
assistance by advising Petitioner to not testify at trial. Petition at 20. He
argues that the defense’s theory of the case, as exhibited in opening statement,
was that Petitioner knew the victim, he went to visit her, and she was angry
with him. Id. at 20-21. He contends his defense counsel failed to present
evidence to support its theory expressed in opening statement. Id. at 21.
Petitioner raised this ground in his addendum as ground eleven. The
court determined that an evidentiary hearing was needed to properly address
his claim. Ex. 11 at 209-10. During the course of the evidentiary hearing, Mr.
Cushman testified that a week before trial Petitioner admitted to co-counsel
that he had not been in a relationship with the victim. Id. at 558-59. Also, Mr.
Cushman testified that he and Petitioner discussed the right to testify. Id. at
559. Mr. Cushman advised Petitioner that if he took the stand, the prosecutor
may question Petitioner about how many times he had previously been
convicted of a felony. Id.at 560. Mr. Cushman stated in his experience, when a
jury hears there have been seven prior incidents of dishonesty or felony
convictions the jury disregards the defendant’s testimony after that admission.
Id. Mr. Cushman said he was attempting to paint Petitioner as a nice guy, not
41
a career criminal. Id. As such, he advised Petitioner to not take the stand. Id.
Petitioner eventually agreed with that advice and told the court he was
satisfied with his decision not to testify. Id. On cross-examination, Mr.
Cushman further explained that he did not want Petitioner to take the stand
because Petitioner’s decision-making ability was very poor. Id. at 566.
The trial record demonstrates that Mr. Cushman told the court they had
discussed whether or not Petitioner would testify. Ex. 2 at 190. Petitioner told
the court he was satisfied with his decision not to testify. Id.
In addressing this ground, the postconviction court reasoned: “[a]lthough
Defendant’s decision was voluntary, the Court must determine whether any
reasonable attorney would have encouraged Defendant to testify, under the
circumstances, including his multiple felony convictions.” Ex. 11 at 346. The
court considered the testimony presented at the evidentiary hearing by both
Mr. Cushman and Petitioner. Id. Thereafter, the court rejected the claim
finding neither deficient performance nor prejudice:
The Court finds Mr. Cushman was reasonable to
advise Defendant, a multiple convicted felon, not to
testify. The record reflects that the Court conducted an
independent inquiry into Defendant’s desire not to
testify. Based on Defendant’s testimony, it is clear that
Mr. Cushman did not refuse to let him testify, but
rather advised him against it and Defendant decided
to take Mr. Cushman’s reasonable advice. The Court
42
does not find Defendant’s testimony to be credible and
finds that Mr. Cushman was not deficient in
recommending Defendant not testify. Further, the
Court finds Mr. Cushman’s observation that had
Defendant taken the stand, he likely would have made
things worse to be a very reasonable conclusion and
accordingly, Defendant cannot establish prejudice.
Id. at 347. The Fifth DCA per curiam affirmed. Ex. 15.
This Court will address the claim in accordance with the deferential
standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
did not involve an unreasonable application of clearly established federal law,
and was not based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Thus, Petitioner is not
entitled to relief on the basis of this claim.
Nevertheless, even if the state court’s adjudication of the claim is not
entitled to deference, Petitioner’s ineffectiveness claim is without merit. The
right to testify is “located” in the Due Process Clause of the Fourteenth
Amendment and the Compulsory Process Clause of the Sixth Amendment and
is corollary to the Fifth Amendment’s guarantee against compelled testimony.
Lott v. State, 931 So. 2d 807, 817-18 (Fla. 2006) (per curiam) (citing Rock v.
43
Arkansas, 483 U.S. 44, 51-52 (1987)). A criminal defendant makes the
fundamental decision as to whether to testify in his own behalf. Id. at 817
(citing Jones v. Barnes, 463 U.S. 745, 751 (1983)). Here, the record shows
Petitioner voluntarily agreed not to testify on his own behalf.
The record shows that counsel told the court Petitioner did not plan to
testify. Petitioner confirmed that fact for the court. Petitioner had an extensive
criminal record, “a multiple convicted felon.” Under these circumstances, a
reasonable attorney would have discouraged a defendant from taking the stand
preventing the jury from hearing the defendant is a convicted felon for multiple
offenses. Indeed, a reasonable attorney would have discouraged Petitioner
from taking the stand as his testimony would be impeachable.
In denying post-conviction relief, the trial court found that it would not
be unreasonable for defense counsel to discourage Petitioner from testifying to
avoid potentially damaging impeachment about multiple prior convictions.
Indeed, on these facts, Petitioner’s contention that no reasonable attorney
would have discouraged Petitioner from testifying is not supportable.
Moreover, the court did not find Petitioner’s testimony credible. The Court is
not in a position to re-weigh this credibility determination.
44
Petitioner’s extensive criminal record would have allowed for
impeachment and the state’s introduction of a large number of offenses would
have severely damaged Petitioner’s standing before the jury. Furthermore, Mr.
Cushman was justifiably wary of putting Petitioner on the stand due to
Petitioner’s poor judgment and decision-making. Finally, the defense decided
not to put on a case, apparently choosing a strategy of requiring the state to
prove the elements of its case. As such, Petitioner is not entitled to habeas
relief on Ground Five.
Therefore, it is now
ORDERED AND ADJUDGED:
1. The Petition (Doc. 1) (with addendum (Doc. 23-1)) is DENIED, and
this action is DISMISSED WITH PREJUDICE.
3. The Clerk of the Court shall enter judgment denying the Petition
(Doc. 1) (with addendum (Doc. 23-1)) and dismissing this case with prejudice.
3. If Petitioner appeals the denial of the Petition (Doc. 1) (with
addendum (Doc. 23-1)),7 the Court denies a certificate of appealability. Because
7 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
45
the Court has determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any motion to
proceed on appeal as a pauper that may be filed in this case. Such termination
shall serve as a denial of the motion.
4. The Clerk of the Court is directed to close this case and terminate
any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 29th day of
November, 2023.
ry
fo /liton— | LE O14
BRIAN/J . DAVIS
United States District Judge
sa 11/17
C:
Counsel of Record
that "the issues presented were ‘adequate to deserve encouragement to proceed further,"
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)). Upon due consideration, this Court will deny a certificate of appealability.
46