Opinion

Fuller v. Florida Department of Corrections

Court: District Court, M.D. Florida
Filed: Dec 4, 2023
Cited by: 0 cases
Authority: More cited than 20.0%

finding that where the prosecutor’s comment was not improper, “counsel cannot be deemed ineffective for failing to object to it.”

How later courts described this case

finding that where the prosecutor’s comment was not improper, “counsel cannot be deemed ineffective for failing to object to it.”
holding that a “bare bones” motion for new trial does not preserve any specific argument for appeal
stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
holding “an attorney is allowed to argue reasonable inferences from the evidence and to argue credibility of witnesses or any other relevant issue so long as the 30 argument is based on the evidence.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ERIC EUGENE FULLER,

Petitioner,

v. Case No. 3:21-cv-163-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Eric Eugene Fuller, an inmate of the Florida penal system,

initiated this action on February 12, 2021,1 by filing a Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 In the Petition,

Fuller challenges a 2014 state court (Duval County, Florida) judgment of

conviction for second-degree murder. He raises four grounds for relief. See

Petition at 10–29. Respondents submitted a memorandum in opposition to

the Petition. See Response (Doc. 12). They also submitted exhibits. See Docs.

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

2 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

12-1 through 12-9. Fuller filed a brief in reply. See Reply (Doc. 13). This

action is ripe for review.

II. Relevant Procedural History

On February 22, 2013, the State of Florida charged Fuller by

information with second-degree murder. Doc. 12-1 at 27. On July 11, 2014,

following a trial, a jury found Fuller guilty with the special finding that he

actually possessed and discharged a firearm causing great bodily harm or

death during the commission of the offense. Id. at 83–84. On August 11, 2014,

the trial court sentenced Fuller to a forty-year term of imprisonment. Id. at

225–31.

On direct appeal, Fuller, with the benefit of counsel, filed an initial

brief, arguing the trial court erred when it: (1) denied the defense’s motion for

judgment of acquittal based on the State’s failure to produce evidence of the

requisite state of mind for second-degree murder—ill will, spite, hatred, or

evil intent; (2) denied the defense’s motion for judgment of acquittal based on

the State’s failure to prove that Fuller did not act in self-defense; and (3)

instructed the jury that Fuller could not be engaged in illegal activity to

claim self-defense. Doc. 12-3 at 2–33. The State filed an answer brief.

Doc. 12-4 at 2–33. The First DCA per curiam affirmed Fuller’s conviction and

sentence without a written opinion on October 9, 2015, Doc. 12-5 at 4, and

issued the mandate on October 27, 2015, id. at 3.

On April 11, 2016, Fuller filed a pro se motion for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. Doc. 12-6 at 2–31. In

his Rule 3.850 Motion, Fuller alleged counsel was ineffective when he failed

to: consult with Fuller before waiving the lesser included offense of

manslaughter (ground one); object to the prosecutor’s comments during

closing arguments (ground two); retain an expert witness and properly cross-

examine the State’s witnesses (ground three); and file a sufficient motion for

new trial (ground four). Id. On February 18, 2020, the postconviction court

summarily denied relief on all grounds. Doc. 12-7 at 2–14. The First DCA per

curiam affirmed the denial of relief without a written opinion on December

23, 2020, Doc. 12-9 at 3, and issued the mandate on January 20, 2021, id. at

III. One-Year Limitations Period

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

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

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

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

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

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

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

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

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

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

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

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

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

the Court. Because the Court can “adequately assess [Fuller’s] claim[s]

without further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

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

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

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

2016), abrogation recognized on other grounds by Smith v. Comm’r, Ala.

Dep’t of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023). “‘The purpose of AEDPA

is to ensure that federal habeas relief functions as a guard against extreme

malfunctions in the state criminal justice systems, and not as a means of

error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)). As

such, federal habeas review of final state court decisions is “greatly

circumscribed and highly deferential.” Id. (internal quotation marks omitted)

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

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

court decision, if any, that adjudicated the claim on the merits. See Marshall

v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state

court need not issue a written opinion explaining its rationale in order for the

state court’s decision to qualify as an adjudication on the merits. See

Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s

adjudication on the merits is unaccompanied by an explanation, the United

States Supreme Court has instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

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

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

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

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

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

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

bars relitigation of the claim unless the state court’s decision (1) “was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States;” or

(2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d);

Richter, 562 U.S. at 97–98. The Eleventh Circuit describes the limited scope

of federal review pursuant to § 2254 as follows:

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

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v.

Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d

389 (2000), § 2254(d)(1) consists of two distinct

clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows

for relief only “if the state court arrives at a

conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court

decides a case differently than [the Supreme] Court

has on a set of materially indistinguishable facts.” Id.

at 413, 120 S. Ct. at 1523 (plurality opinion). The

“unreasonable application” clause allows for relief

only “if the state court identifies the correct

governing legal principle from [the Supreme] Court's

decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Id.

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

claims of state courts’ erroneous factual

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

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

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The Supreme Court has not yet defined §

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

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

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

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

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

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

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

determination is not unreasonable merely because

the federal habeas court would have reached a

different conclusion in the first instance.’” Titlow, 571

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

558 U.S. 290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d

738 (2010)).

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

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

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

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

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

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

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

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

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

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

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

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

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

claims were adjudicated on the merits in the state courts, they must be

evaluated under 28 U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a §

2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest

court, either on direct appeal or on collateral review. Castille v. Peoples, 489

U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim,

“state prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s

established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838,

845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a

state prisoner must exhaust available state remedies,

28 U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor,

404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438

(1971)). To provide the State with the necessary

“opportunity,” the prisoner must “fairly present” his

claim in each appropriate state court (including a

state supreme court with powers of discretionary

review), thereby alerting that court to the federal

nature of the claim. Duncan, supra, at 365–366, 115

S. Ct. 887; O’Sullivan v. Boerckel, 526 U.S. 838, 845,

119 S. Ct. 1728, 144 L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are

guided by rules designed to ensure that state-court

judgments are accorded the finality and respect

necessary to preserve the integrity of legal

proceedings within our system of federalism. These

rules include the doctrine of procedural default,

under which a federal court will not review the

merits of claims, including constitutional claims, that

a state court declined to hear because the prisoner

failed to abide by a state procedural rule. See, e.g.,

Coleman,[3] supra, at 747–748, 111 S. Ct. 2546;

Sykes,[4] 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.

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

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

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults

may be excused under certain circumstances. Notwithstanding that a claim

has been procedurally defaulted, a federal court may still consider the claim

if a state habeas petitioner can show either (1) cause for and actual prejudice

from the default; or (2) a fundamental miscarriage of justice. Ward v. Hall,

592 F.3d 1144, 1157 (11th Cir. 2010). In order for a petitioner to establish

cause,

the procedural default “must result from some

objective factor external to the defense that

prevented [him] from raising the claim and which

cannot be fairly attributable to his own conduct.”

McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.

1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct.

2639).[5] 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

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

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice,

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th

Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally,

“‘[t]o be credible,’ a claim of actual innocence must be based on reliable

evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559

(1998) (quoting Schlup, 513 U.S. at 324). With the rarity of such evidence, in

most cases, allegations of actual innocence are ultimately summarily

rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants 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) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then

Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

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

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

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

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

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

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

2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

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

2052. It is not enough “to show that the errors had

some conceivable effect on the outcome of the

proceeding.” Id., at 693, 104 S. Ct. 2052. Counsel’s

errors must be “so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id., at

687, 104 S. Ct. 2052.

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

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

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet

the prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d

1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice, which

we expect will often be so, that course should be followed.” Strickland, 466

U.S. at 697.

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

deference.

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

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

131 S. Ct. at 788. But “[e]stablishing that a state

court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The

standards created by Strickland and § 2254(d) are

both highly deferential, and when the two apply in

tandem, review is doubly so.” Id. (citations and

quotation marks omitted). “The question is not

whether a federal court believes the state court’s

determination under the Strickland standard was

incorrect but whether that determination was

unreasonable — a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct.

1411, 1420, 173 L.Ed.2d 251 (2009) (quotation marks

omitted). If there is “any reasonable argument that

counsel satisfied Strickland’s deferential standard,”

then a federal court may not disturb a state-court

decision denying the claim. Richter, 562 U.S. at ---,

131 S. Ct. at 788.

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

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

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

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

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

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

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

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

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, Fuller alleges counsel was ineffective when he waived

the lesser included offense of manslaughter during his closing argument.

Petition at 10. The trial court instructed the jury on manslaughter;

nevertheless, counsel conceded during closing argument that the incident did

not constitute manslaughter. Id. at 10, 12. Fuller contends that counsel never

conferred with him about waiving the lesser included offense or pursuing an

“all or nothing approach.” Id. at 10. He argues that “such a strategy took

away the jury’s pardoning power.” Id. at 13.

Fuller raised a substantially similar claim as ground one of his Rule

3.850 motion.6 Doc. 12-6 at 11–19. The postconviction court denied relief,

stating in pertinent part:

In his first ground Defendant asserts counsel

rendered ineffective assistance by waiving the

possibility of a conviction of the lesser included

offense of manslaughter in closing argument, without

consulting Defendant or obtaining his authorization.

Defendant asserts that he did not know trial counsel

“intended to take an[] ‘all-or-nothing’ approach,” and

that, had he known, he would have disavowed such a

strategy and insisted on the manslaughter

instruction.” In fact, the jury was instructed on the

lesser included offense of manslaughter. As the State

pointed out in its response, Defendant’s assertion

that he was unaware of counsel’s intentions until

closing argument is refuted by the record, where in

opening statement, trial counsel urged the jury to

find Defendant not guilty because his was “a lawful

justifiable act and that he was in a position where he

lawfully defended himself.” Defendant then testified

that he shot the victim in self-defense. As the Court

6 Fuller also raised Ground One, Subclaim A, in his Rule 3.850 Motion,

alleging counsel was ineffective when he failed to request a jury instruction on “the

culpable negligence aspect of manslaughter.” Doc. 12-6 at 18. However, he has

failed to assert that claim in his federal Petition.

instructed the jury, “[t]he defendant cannot be guilty

of manslaughter by committing a merely negligent

act or if the killing was either justifiable or excusable

homicide.” Therefore, for his attorney to have argued

other than for acquittal would have meant asking the

jury not to believe Defendant.

Doc. 12-7 at 2–3 (record citations omitted). The First DCA affirmed the denial

of relief without a written opinion. Doc. 12-9 at 3.

To the extent that the First DCA decided this claim on the merits,7 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, Fuller is not

entitled to relief on the basis of this claim.

Nevertheless, even if the state appellate court’s adjudication of this

claim is not entitled to deference, the claim is without merit. Throughout

trial, counsel argued that Fuller shot the victim, Carlton Hardaman, in self-

7 Throughout this Order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the

appellate court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.

defense. Doc. 12-2 at 33, 38, 604, 619–20. Fuller testified consistently with

this defense when he averred that Hardaman “put [him] in fear for [his] life.”

Id. at 282. Notably, the jury instructions provided that “[t]he defendant

cannot be guilty of manslaughter by committing a merely negligent act or if

the killing was either justifiable or excusable homicide.” Doc. 12-1 at 93.

Based on the above, a strategy in which counsel argued both self-defense and

manslaughter could have confused the jury and undermined Fuller’s

credibility. Counsel reasonably could have believed that the defense should

assert only self-defense. Therefore, the Court finds that counsel was not

deficient when he conceded the lesser included offense of manslaughter.

Even assuming arguendo deficient performance by counsel, Fuller has

not shown any resulting prejudice. Underlying Fuller’s claim of prejudice is

the idea that the jury would have found him guilty of manslaughter had

counsel not waived the argument for the lesser included offense. This

argument ignores the fact that the jury found that the state proved each

element of second-degree murder, see Doc. 12-1 at 83; therefore, Fuller’s

prejudice allegation relies solely on the possibility of a jury pardon. The

possibility of a jury pardon, however, cannot establish prejudice under

Strickland. See Strickland, 466 U.S. at 694–95 (noting in determining

whether prejudice exists, a court should presume the “jury acted according to

law,” and “[a]n assessment of the likelihood of a result more favorable to the

defendant must exclude the possibility of arbitrariness, whimsy, caprice,

‘nullification,’ and the like. A defendant has no entitlement to the luck of a

lawless decisionmaker, even if a lawless decision cannot be reviewed.”); see

also Sanders v. State, 946 So. 2d 953, 959–60 (Fla. 2006) (holding that

although the failure to instruct the jury on a necessarily lesser included

offense can be per se reversible error on direct appeal, the mere possibility

that the jury might have exercised its pardon power “cannot form the basis

for a finding of prejudice” to support an ineffective assistance of counsel claim

in a postconviction motion). As Fuller demonstrates neither deficiency nor

prejudice, his claim of ineffective assistance of counsel fails. Accordingly, he

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

B. Ground Two

In Ground Two, Fuller argues that counsel was ineffective when he

failed to object to the prosecutor’s comments during closing arguments.

Petition at 16. He contends that the prosecutor commented on facts not in

evidence, misstated the law, and personally attacked him. Id. at 16–18.

1. Facts Not in Evidence

Fuller contends that counsel was ineffective when he failed to object to

the prosecutor’s comments on facts not in evidence. See id. at 16. According to

Fuller, the prosecutor made the following assertions during closing

argument: (1) Lieutenant Silcox testified, “He [Fuller] didn’t come out [of the

vehicle] on his own. I had to pull him out.”; (2) Fuller “was a little weary [sic]

when Mr. Hardaman got in the car” so Fuller put a gun in his lap; (3) Fuller

stated on the day of the murder, “[S]omeone’s going to get it tonight.”; and

(4) Fuller slammed Hardaman’s head into the dashboard after Fuller shot

him. Id. at 16–18. He argues that the facts in evidence did not support these

assertions. Id.

Fuller raised substantially similar claims in ground two of his Rule

3.850 Motion. Doc. 12-6 at 20–22. The postconviction court denied relief,

stating in pertinent part:

The first instance was the prosecutor’s remark, “He

didn’t come out on his own. I had to pull him[,][]”

which was a characterization of Lieutenant Silcox’s

testimony about removing Defendant from the car

where he was found. Defendant asserts that the

prosecutor’s statement was “not supported by the

evidence and should have garnered an objection.”

Lieutenant Silcox described his arrival on the scene

where Defendant was found sitting in the driver’s

seat of a car, and testified:

I instructed him to move his left hand

over because we couldn’t get the driver’s

side door the way the vehicle was wedged

into the woods. And instead of reaching

his left hand over, he reached his right

hand over. And I grabbed[sic] right hand

and I pulled him out of the vehicle, put

him on the ground and we handcuffed

him.

Captain Avery, a paramedic who was first to arrive

on the scene, testified when the officers were pulling

Defendant out of the car, “[h]is legs were stiff. He

wasn’t helping them. They pulled him out.” On cross

examination by defense counsel, Lieutenant Silcox

testified:

Q All right. So you and

Sergeant Sutton actually pulled him out

of the car together. Wouldn’t that be

right?

A Sergeant Sutton was

standing more behind the vehicle. I

pulled him out by his hand and then we

handcuffed him. Sergeant Sutton

come[sic] around to where I was at.

Q Okay. And in order to get him

from the driver’s side out of the

passenger side, he would have had to go

over the console of the car, right?

A I don’t remember if the car

had an actual console in the middle of it

or not.

Q But if it did, he would have

had to come over?

A He would have had to come

across it, yes, sir.

Q And if there was a parking

brake, he would have had to go over[sic]

parking brake, as well?

A If there had been one in

there, yes.

Q All right. And then he came

across the passenger seat, right?

A Yes, sir.

Q He wasn’t elevated. You had

to pull him.

A No sir. I had to pull him

across there.

This Court finds that Lieutenant Silcox’s testimony

was as the State described it, and was supported by

Captain Avery’s testimony. The record refutes

Defendant’s assertion that the State’s remarks were

not supported by evidence. There was no ground for

counsel to object, and the absence of an objection was

not deficient performance. Taylor v. State, 120 So. 3d

540, 551 (Fla. 2013) (holding defense counsel not

ineffective for failing to object to proper arguments).

. . . .

. . . Defendant argues the prosecutor mischaracterized

his testimony about why he had a gun in his lap: the

State asserted that Defendant was wary when the

victim got into the car, but Defendant testified that

he armed himself because of the area they were in.

Defendant testified that, earlier in the day, he had

talked with the victim about Defendant’s expectation

of receiving a $1,000 tax refund, and that the victim

asked Defendant several times when Defendant

planned to cash the refund check, because the victim

needed some cash. Later, as Defendant drove the

victim around, the victim complained about his

money situation and “stated someone got to get it

tonight, like he was threatening somebody.”

Sometime after that, Defendant was again driving

with the victim in the car. Defendant described

lighting a cigarette and beginning to count money

from his paycheck while stopped at a traffic signal.

He also removed a gun from under the seat and put it

in his lap while stopped at the red light. Shortly after

proceeding on the green light, the victim grabbed the

pistol Defendant had in his lap “and jammed it to

[Defendant’s] head.” When asked why he had a pistol

in his lap, Defendant testified, “Usually the gun be

up under the seat, but at that moment, I felt — I felt

kind of — it was — just something. It was a

weary[sic] feeling. And I had just reached up under

the seat, and I put it on my lap. In closing argument,

the prosecutor said, “He tells us yesterday, well, after

[the victim] got in the car, I was a little weary[sic].

Things just seemed out of place. And I kind of got the

sense that something was going wrong, so I put the

gun in my lap.” The prosecutor’s chronology was

correct—Defendant put the gun in his lap after the

victim got into the car—and his argument need not

be read to imply that the victim was the cause of

Defendant’s wary feeling. The record refutes

Defendant’s claim that he testified to putting the gun

in his lap because of the area they were in; he

testified to no such thing. Because the State did not

mischaracterize Defendant’s testimony in its closing

argument, there was no basis for objection, and

counsel was not ineffective for failing to object.

. . . Defendant alleges that the prosecutor mistakenly

attributed the statement “someone’s going to get it

tonight” to Defendant, which would have misled the

jury into believing that Defendant was out to get

someone. The prosecutor said, “And then a gun is put

to my head. And what does he tell us? Someone’s

going to get it tonight. Who? What? What are you

talking about? Well, I had to do something fast so I

fake a turn right.” Contrary to Defendant’s assertion,

the State did not attribute the statement “someone’s

going to get it tonight” to Defendant. A more

reasonable reading of the argument is that the State

is recalling the testimony with Defendant as the

narrator; from that perspective, the statement

“someone’s going to get it tonight” helps to explain

why Defendant felt he had to do something fast—

because he felt threatened by the victim—and

executed the fake right turn. The record does not

support Defendant’s reading of the argument, nor his

assertion that the argument likely influenced the

jury to find him guilty.

. . . Defendant points to the prosecutor’s “remark on

facts not in evidence that was so prejudicial it cannot

be said that the jury was not influenced by it.” The

portion of the closing argument at issue reads,

“[Defendant] doesn’t want us to know that after he

shoots his friend, he takes his head and bashes it into

the dashboard. How do we know that? Because Dr.

Rao told us . . . .” Defendant’s motion truncates this

last sentence as indicated. At trial, the cause of

injuries to the victim’s forehead and eye, and the

mechanism by which the victim’s blood was left on

the windshield, on the dashboard, and even inside

the dashboard vents, were contested issues.

Defendant testified that after he shot the victim, the

victim’s head hit the dashboard, but did not stay on

the dashboard as his “body was just moving

everywhere around, around the car. It was just

moving and it was a dangling body.” The sentence

which Defendant truncated in his motion reads, in

full, “Because Dr. Rao told us there’s an indentation

right up here, the victim’s body, that matches the

dashboard.”

Dr. Rao, the medical examiner, testified at trial

that the injuries to the eye and forehead bore a linear

pattern, which could have been caused by hitting the

dashboard of the car. She also testified that the

injuries would have required significant force, as

shown by the skin having been rubbed off, the

bleeding under the scalp, and the internal bleeding

under the eyes. On cross-examination, Dr. Rao

testified that it would be possible to grab someone by

the back of the neck without leaving any markings on

the back of the neck. Therefore, Dr. Rao’s testimony

regarding: the linear pattern of the injuries; that the

injuries would have required significant force, i.e., a

force greater than “dangling;” and that one could

have grabbed the back of the neck without leaving a

mark, supports the inference the State made in

closing argument, so that the argument was not

objectionable.

Additional support for an inference that

Defendant forcefully shoved the victim’s head into

the dashboard comes from the testimony of the

State’s bloodstain pattern analyst Karen Smith, who

opined on the force necessary to deposit blood on

parts of the dashboard and far into the vent holes.

Doc. 12-7 at 3–4, 6–8 (footnote and record citations omitted). The First DCA

affirmed the denial of relief without a written opinion. Doc. 12-9 at 3.

To the extent that the First DCA decided these claims on the merits,

the Court will address the claims 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 the claims 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. Therefore, Fuller is not

entitled to relief on the basis of these claims.

Nevertheless, even if the state appellate court’s adjudication of these

claims is not entitled to deference, the claims are without merit because the

record supports the postconviction court’s conclusions. During closing

argument, a prosecutor may assist the jury in “analyzing, evaluating, and

applying the evidence” and, in doing so, “state his contention as to the

conclusions that the jury should draw from the evidence.” United States v.

Johns, 734 F.2d 657, 663 (11th Cir. 1984) (emphasis and citation omitted).

Here, Lieutenant Phillip Silcox, in conjunction with Captain Debra Avery,

provided testimony that supported the inference that law enforcement had to

pull Fuller out of his vehicle. See Doc. 12-2 at 77, 82. Similarly, the

prosecutor’s comment about Fuller slamming Hardaman’s head into the

dashboard was a reasonable inference from the facts in evidence. Medical

examiner Dr. Valerie Rao stated that Hardaman sustained blunt force

trauma to his forehead in a linear pattern consistent with the dashboard of

Fuller’s vehicle. Id. at 191–92. According to Dr. Rao, significant force caused

the injury. Id. at 193. Blood stains on the dashboard also showed Hardaman’s

head impacted the dashboard with “some force.” Id. at 221–22. As such, the

prosecutor made proper comments based on the evidence; counsel was not

deficient when he failed to raise meritless objections to these comments. See

Chandler v. Moore, 240 F.3d 907, 914 (11th Cir. 2001) (finding that where the

prosecutor’s comment was not improper, “counsel cannot be deemed

ineffective for failing to object to it.”).

Fuller also alleges that the prosecutor “mischaracterized the testimony

of Mr. Fuller as to why he had the gun in his lap . . . and indicated that Mr.

Fuller said he was a little weary [sic] when Mr. Hardaman got in the car . . .

when clearly Fuller said his reason for arming himself was due to the area

they were in.” Petition at 17. The record reflects Fuller testified that he

reached under his seat and put a gun in his lap while he was driving with

Hardaman in the vehicle because he had “a weary [sic] feeling.” Doc. 12-2 at

279. Contrary to his representation in the Petition, Fuller did not testify that

he armed himself “due to the area they were in.” Petition at 17. The

prosecutor accurately represented the facts in evidence. Therefore, counsel

had no basis to object to the prosecutor’s comment. See Chandler, 240 F.3d at

914.

Last, Fuller contends the prosecutor misattributed the statement,

“Someone is going to get it tonight,” to him. Petition at 17. Having considered

the comment in context, the Court finds that the prosecutor did not attribute

the statement to Fuller. Doc. 12-2 at 593–94. Moreover, attorneys are

permitted wide latitude in their closing arguments, and the record reflects

that the trial judge instructed the jury that the attorneys’ statements and

arguments were not evidence. Id. at 577; see Brown v. Jones, 255 F.3d 1273,

1280 (11th Cir. 2001) (stating that “jurors are presumed to follow the court’s

instructions”). Counsel’s decision not to object was within the wide range of

professionally competent assistance. Accordingly, Fuller is not entitled to

federal habeas relief on these claims.

2. Misstatement of the Law

Fuller alleges that counsel was ineffective for failing to object when the

prosecutor made a comment “contrary to the law.” Petition at 17. Fuller

raised a substantially similar claim in ground two of his Rule 3.850 Motion.

Doc. 12-6 at 20–22. In denying relief, the postconviction court stated:

Second, Defendant alleges that the prosecutor

argued to the jury that the type of bullet used

“somehow proves the ill will, spite, evil intent, etc.,

element of second degree murder, contrary to the

law.” Defendant asserts that the argument required

an objection and a curative instruction. The portion of

the State’s closing at issue reads:

Let’s further talk about what’s

imminently dangerous to another and

demonstrating a depraved mind. One, a

person of ordinary judgment would know

is reasonably certain to kill or do serious

bodily injury to another and is done from

ill will, hatred spite or evil intent and is

of such a nature that the act itself

indicates an indifference to human life.

Well, how did we prove that? You

took a look at this firearm, this .45

caliber semiauto gun that was used. You

heard from Dr. Rao how close the bullet

wound was because of the stippling on

the side of the forehead, pointing a

firearm of this caliber, probably any

caliber for that matter, but this caliber,

within inches of somebody’s head and

firing it, imminently dangerous. Someone

that’s upset, someone gets mad pulls the

trigger. And you saw the results. You saw

the blood all over the car. You saw the

blood all over the victim. The blood is

even over the firearm.

You heard from the FDLE DNA

analyst. Yeah, there’s his DNA all over it.

Well, of course, because of all the blood.

So is it imminently dangerous

holding this firearm in the driver seat,

pointing it at your best friend, your

brother? Yeah.

And you can take a look at the

bullets that were found inside the car to

give you an idea of the type of bullet that

went through the victim’s skull, and you

can decide if this was done from ill will,

hatred, spite, that the act indicates an

indifference to human, life shooting a

bullet through Mr. Carlton’s [Hardaman]

head.

The prosecutor, then, did not argue merely that the

type of bullet indicated ill will, spite, or evil intent, as

Defendant asserts. Instead, the State, pointed to

several circumstances—the kind and caliber of

weapon, the firing of the weapon inches from the

victim’s head, the blood on the car, on the victim, and

on the weapon—and argued that those circumstances

support an inference that the act was imminently

dangerous. The Court gave the jury a three-part

definition of an act “imminently dangerous to another

and demonstrating a depraved mind . . . .” One of

those three parts was an act “done from ill will,

hatred, spite or an evil intent[;]” another was an act

“of such a nature that the act itself indicates an

indifference to human life.” The portion of closing

argument quoted above mentions those two parts of

the definition without emphasizing one over the

other. The State, as it is permitted to do, argued that

the evidence supported an inference that Defendant’s

act of shooting the victim was imminently dangerous

and demonstrated a depraved mind. See Miller v.

State, 926 So. 2d 1243, 1254-55 (Fla. 2006) (holding

“an attorney is allowed to argue reasonable

inferences from the evidence and to argue credibility

of witnesses or any other relevant issue so long as the

argument is based on the evidence.”). Therefore,

there was no basis for counsel to object, and counsel

did not perform deficiently by not doing so.

Doc. 12-7 at 5–6 (record citations omitted). The First DCA affirmed the denial

of relief without a written opinion. Doc. 12-9 at 3.

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

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

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

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

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

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Fuller is not

entitled to relief on the basis of this claim.

Nevertheless, even if the state appellate court’s adjudication of this

claim is not entitled to deference, the ineffectiveness claim is without merit.

Here, the prosecutor argued that the caliber of the bullet in conjunction with

the position of the gun relative to Hardaman’s head demonstrated the intent

element of second-degree murder—the act was done from ill will, hatred,

spite, or evil intent, as well as indicated an indifference to human life. Doc.

12-2 at 585–86. Fuller points to no case law that prohibits the jury from

considering the caliber of the bullet as evidence of this element. See generally

Petition, Reply. The Court finds that the prosecutor’s remarks were proper as

reasonable inferences that the jury could draw from the evidence, see Johns,

734 F.2d at 663, and counsel was not deficient when he failed to make a

meritless objection to it, see Chandler, 240 F.3d at 914. Therefore, Fuller is

not entitled to federal habeas relief on the basis of this claim.

3. Personal Attacks

Fuller next argues counsel was ineffective when he failed to object to

the prosecutor’s “personal attack[s]” on Fuller during rebuttal closing

argument. Petition at 17–18. Fuller raised a substantially similar claim in

ground two of his Rule 3.850 Motion. Doc. 12-6 at 20–22. The postconviction

court denied relief, stating in pertinent part:

Sixth, Defendant alleges that an objection and

motion for mistrial were necessitated by the

prosecutor’s “personal attack on [his] character[,]”

when the prosecutor said, “‘by the defense’s own logic,

any one riding alone with another person- - and I

would hate to ride along with Eric Fuller all by

myself because guess what? He decides to murder

me.’” The trial transcript actually reads, “By the

defense’s logic anyone riding alone with another

person — and I would hate to ride along with Eric

Fuller all by myself because guess what? He decides

to murder me. I tried to rob him. I tried to kidnap

him.” The passage at issue is from the State’s

rebuttal closing. It was in response to Defendant’s

argument that the State presented no evidence to

contradict Defendant’s testimony about what

happened in the car before the shooting. The State’s

rebuttal implied that, because Defendant was the

only one who survived the ride in the car, he can say

what he wishes about what happened without fear of

contradiction, including saying after the fact that the

person he shot tried to rob and kidnap him. The

State’s rebuttal was a permissible comment on

Defendant’s credibility as a witness, and as such, was

not objectionable.

Defendant’s seventh and final claim regarding

closing argument concerns the “numerous remarks

that Fuller was a liar which also amounted to a

personal belief since the record does not support such

remarks.” Defendant cites examples from the State’s

rebuttal closing ranging from page 804 through page

817 of the trial transcript.

. . . .

Each of the passages quoted above was an

instance of the prosecutor, in rebuttal, pointing out

perceived weaknesses or inconsistencies in

Defendant’s testimony and theory of the case in light

of the evidence.

When counsel refers to a witness or a

defendant as being a “liar,” and it is

understood from the context that the

charge is made with reference to

testimony given by the person thus

characterized, the prosecutor is merely

submitting to the jury a conclusion that

he is arguing can be drawn from the

evidence. It was for the jury to decide

what evidence and testimony was worthy

of belief and the prosecutor was merely

submitting his view of the evidence to

them for consideration. There was no

impropriety.

Craig v. State, 510 So. 2d 857, 865 (Fla. 1987).

Therefore, this Court finds no impropriety here, and

no basis for defense counsel to have objected.

Doc. 12-7 at 8–11 (record citations omitted). The First DCA affirmed the

denial of relief without a written opinion. Doc. 12-9 at 3.