Spears v. Secretary, Department of Corrections (Polk County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARTICE D. SPEARS,

Petitioner,

v. Case No. 8:20-cv-3011-KKM-AEP

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________________

ORDER

Spears, a Florida inmate, timely1 filed a pro se Petition for Writ of Habeas Corpus

under 28 U.S.C. § 2254 challenging his state court conviction based on an alleged error of

the trial court and alleged failings of his trial counsel. (Doc. 1.) Having considered the

petition, ( .), the supporting memorandum, (Doc. 2), and the response in opposition,

1 A state prisoner has one year from the date his judgment becomes final to file a § 2254 petition.

§ 2244(d)(1). This one-year limitation period is tolled during the pendency of a properly filed state motion

seeking collateral relief. § 2244(d)(2). The state appellate court affirmed Spears’s conviction and

sentence on August 26, 2016. (Doc. 13-2, Ex. 6.) His judgment became final 90 days later, on November

25, 2016, when the time to petition the Supreme Court of the United States for a writ of certiorari expired.

, 309 F.3d 770, 774 (11th Cir. 2002). Before that date, on November 21, 2016, Spears

filed his petition alleging ineffective assistance of appellate counsel on November 21, 2016. (Doc. 13-2, Ex.

9.) That petition remained pending until the state appellate court denied it on February 24, 2017. (Doc.

13-2, Ex. 10.) Before that date, Spears filed his postconviction motion on February 20, 2017. (Doc. 13-2,

Ex. 11.) The postconviction motion remained pending until the state appellate court’s mandate issued on

September 22, 2020. (Doc. 13-2, Ex. 38.) Spears filed his § 2254 petition 83 days later, on December 15,

2020. (Doc. 1, p. 15.) Spears’s petition is therefore timely.

(Doc. 12), the petition is denied.2 Because reasonable jurists would not disagree, a

certificate of appealability also is not warranted.

I. BACKGROUND

A. Procedural Background

A state court jury convicted Spears of being a felon in possession of a firearm. (Doc.

13-2, Ex. 1, p. 77.) The state trial court sentenced him to 12 years in prison. ( ., pp. 104-

08.) The state appellate court affirmed Spears’s conviction and sentence without comment.

(Doc. 13-2, Ex. 6.) The state appellate court denied Spears’s petition alleging ineffective

assistance of appellate counsel, filed under Florida Rule of Appellate Procedure 9.141(d).

(Doc. 13-2, Exs. 9 & 10.) The state trial court denied Spears’s motion for postconviction

relief, filed under Florida Rule of Criminal Procedure 3.850. (Doc. 13-2, Ex. 27.) The state

appellate court per curiam affirmed the denial. (Doc. 13-2, Ex. 37.)

B. Factual Background3

On the night of April 22, 2013, into the early morning hours of April 23, 2013,

Wai Lei was driving his car in Lake Wales, Florida. (Doc. 13-2, Ex. 1, pp. 151-52.) When

he stopped at a stop sign, Spears got into the passenger seat of Lei’s car, took Lei’s Glock

9 mm firearm from the center console, and jumped out of the car. ( ., pp. 152-54.) Lei

2 Spears did not file a reply.

3 This factual summary is based on the trial transcript.

called the police. ( ., p. 156.) Lei recognized Spears and knew him by the nickname “Poo-

Poo.” ( ., pp. 152-53.)

While Lei waited for police to arrive, Mildred Smith drove past and noticed Lei’s

car at the stop sign. ( ., pp. 156, 166.) Smith asked Lei if anything was wrong. ( ., p.

166.) Lei told her that a gun had been taken, and Smith stated that she could get the gun

back for him. ( ., p. 169.) Smith knew someone who went by the name Poo-Poo. ( .,

pp. 169-70.)

Police arrived a short time later. ( ., p. 156.) When Smith offered to help retrieve

the gun, police advised her not to do so. ( ., pp. 201, 206-07.) But Smith tracked down

Spears. She stated that she went to an alley where she knew “those people [would] be” and

told someone that she needed a gun. ( ., p. 170.) Smith stated that she met up with Spears,

who had the gun, got into her car, and offered to sell her the gun. ( ., pp. 171-72.)

Police stopped Smith’s car. ( ., p. 173.) Smith saw Spears place the gun in the glove

compartment. ( .) Spears complied with officers’ directions to get out of the car and get

on the ground. ( ., p. 188.) Officer Mongeon recovered the gun from Smith’s open glove

compartment. ( ., p. 189.) After Lei identified the gun as his, Officer Brown returned it

to Lei. ( ., p. 203.) Lei chose Spears’s picture from a photopack and identified him as the

person who took his gun. ( ., pp. 203-05.)

II. STANDARD OF REVIEW UNDER SECTION 2254

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

proceeding. , 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

under the AEDPA can be granted only if a petitioner is in custody “in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “The power of

the federal courts to grant a writ of habeas corpus setting aside a state prisoner’s conviction

on a claim that his conviction was obtained in violation of the United States Constitution

is strictly circumscribed.” , 28 F.4th 1089, 1093 (11th Cir.

2022).

Section 2254(d) provides that federal habeas relief cannot be granted on a claim

adjudicated on the merits in state court unless the state court’s adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

For purposes of § 2254(d)(1), the phrase “clearly established Federal law”

encompasses the holdings only of the United States Supreme Court “as of the time of the

relevant state-court decision.” , 529 U.S. 362, 412 (2000). This section

“defines two categories of cases in which a state prisoner may obtain federal habeas relief

with respect to a claim adjudicated on the merits in state court.” at 404. First, a decision

is “contrary to” clearly established federal law “if the state court arrives at a conclusion

opposite to that reached by [the Supreme] Court on a question of law or if the state court

decides a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” . at 413.

Second, a decision involves an “unreasonable application” of clearly established

federal law “if the state court identifies the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.” The AEDPA was meant “to prevent federal habeas ‘retrials’ and to

ensure that state-court convictions are given effect to the extent possible under law.”

, 535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state

court’s application of clearly established federal law is objectively unreasonable, and . . . an

unreasonable application is different from an incorrect one.” at 694. As a result, to

obtain relief under the AEDPA, “a state prisoner must show that the state court’s ruling

on the claim being presented in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” , 562 U.S. 86, 103 (2011);

, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s application of

clearly established federal law must be objectively unreasonable” for a federal habeas

petitioner to prevail and that the state court’s “clear error” is insufficient).

When the last state court to decide a federal claim explains its decision in a reasoned

opinion, a federal habeas court reviews the specific reasons as stated in the opinion and

defers to those reasons if they are reasonable. , 138 S. Ct. 1188, 1192

(2018). But the habeas court is “not limited by the particular justifications the state court

provided for its reasons, and [it] may consider additional rationales that support the state

court’s determination.” , 55 F.4th 1277, 1292

(11th Cir. 2022). When the relevant state-court decision is not accompanied with reasons

for the decision—such as a summary affirmance without discussion—the federal court

“should ‘look through’ the unexplained decision to the last related state-court decision that

does provide a relevant rationale [and] presume that the unexplained decision adopted the

same reasoning.” , 138 S. Ct. at 1192. The state may “rebut the presumption by

showing that the unexplained affirmance relied or most likely did rely on different grounds

than the lower state court’s decision . . . .”

For purposes of § 2254(d)(2), “it is not enough to show that ‘reasonable minds

reviewing the record might disagree about the finding in question.’ ” ,

142 S. Ct. 1510, 1525 (2022) (quotations omitted). “An unreasonable determination of the

facts occurs when the direction of the evidence, viewed cumulatively, was too powerful to

conclude anything but the petitioners factual claim.”

, 978 F.3d 1349, 1355 (11th Cir. 2020) (internal quotation marks and alterations

omitted). A state court’s findings of fact are presumed correct, and a petitioner can rebut

the presumption of correctness afforded to a state court’s factual findings only by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

Even where a petitioner succeeds in rebutting the presumption, he must show that

the state court’s decision is “based on” the incorrect factual determination.

, 50 F.4th 1025, 1035 (11th Cir. 2022). This is because a state court

decision may still be reasonable “even if some of the state court’s individual factual findings

were erroneous—so long as the decision, taken as a whole, doesn’t constitute an

‘unreasonable determination of the facts’ and isn’t ‘based on’ any such determination.” .

(quoting , 10 F.4th 1203, 1224–25 (11th Cir. 2021)

(Newsom, J., concurring)).

In addition to satisfying the deferential standard of federal court review of a state

court adjudication, a federal habeas petitioner must exhaust his claims by raising them in

state court before presenting them in a federal petition. 28 U.S.C. § 2254(b)(1)(A);

, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state

courts an opportunity to act on his claims before he presents those claims to a federal court

in a habeas petition.”). A petitioner satisfies this exhaustion requirement if he fairly presents

the claim in each appropriate state court and alerts that court to the federal nature of the

claim. , 592 F.3d 1144, 1156 (11th Cir. 2010).

The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default which

will bar federal habeas relief, unless either the cause and prejudice or the fundamental

miscarriage of justice exception is established.” , 256 F.3d 1135, 1138 (11th

Cir. 2001). A petitioner shows cause for a procedural default when he demonstrates “that

some objective factor external to the defense impeded the effort to raise the claim properly

in the state court.” , 169 F.3d 695, 703 (11th Cir. 1999). A petitioner

demonstrates prejudice by showing that “there is at least a reasonable probability that the

result of the proceeding would have been different” absent the constitutional violation.

, 353 F.3d 880, 892 (11th Cir. 2003). “A ‘fundamental miscarriage

of justice’ occurs in an extraordinary case, where a constitutional violation has resulted in

the conviction of someone who is actually innocent.”

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Spears brings claims for ineffective assistance of trial counsel under the Sixth

Amendment. Under the well-known, two-part standard articulated in

, 466 U.S. 668 (1984), to succeed, he must show both deficient performance

by his counsel and prejudice resulting from those errors. . at 687.

The first part “requires showing that counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

The lynchpin of this analysis is whether counsel’s conduct “was reasonable considering all

the circumstances.” . at 688. A petitioner establishes deficient performance if “the

identified acts or omissions [of counsel] were outside the wide range of professionally

competent assistance.” . at 690. A court “must judge the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” . “[C]ounsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment.”

The second part requires showing that the deficient performance prejudiced the

defense. at 687. “An error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no effect on

the judgment.” . at 691. To demonstrate prejudice, a petitioner must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” at 694.

“The question [on federal habeas review of an ineffective assistance claim] ‘is not

whether a federal court believes the state court’s determination’ under the

standard ‘was incorrect but whether that determination was unreasonable—a substantially

higher threshold.’ ” , 556 U.S. 111, 123 (2009) (quoting

, 550 U.S. 465, 473 (2007)). Consequently, federal petitioners rarely prevail on

claims of ineffective assistance of counsel because “[t]he standards created by

and § 2254(d) are both highly deferential, and when the two apply in tandem, review is

doubly so.” , 562 U.S. at 105 (quotation and citations omitted).

IV. ANALYSIS

A. Ground One

Spears asserts that trial counsel was ineffective for failing to “rebuttal and adequately

cross-examine” State witnesses Lei and Smith “with their contradictory testimony.” (Doc.

1-1, p. 5.) Spears identifies several topics about which he contends counsel inadequately

cross-examined these witnesses.

First, Spears contends that Lei testified at trial that Spears was only in his car for

seconds, reached into the center console, grabbed the gun, and jumped out, all while the

car was stopped. But at deposition, Spears asserts, Lei testified that Spears started searching

in his car for anything valuable. And Spears contends that Lei’s initial statement to police

was that he dropped Spears off at the stop sign, but that Spears reached back in and grabbed

his gun and jumped out while the car was still moving.

The state court found that Lei gave consistent testimony at deposition and at trial

that the car was not moving when Spears exited. (Doc. 13-2, Ex. 27, p. 39.) Although the

state court did not expressly analyze Spears’s assertions that Lei gave differing statements

as to whether Spears searched or reached back inside the car, or that Lei at one point said

the car was moving, the state court found that counsel was not ineffective for failing to

impeach the witnesses, and that Spears did not show prejudice. ( ., pp. 39-40.)4

The state court’s decision was not unreasonable. Lei testified both at trial and at

deposition that the car was stopped. (Doc. 13-2, Ex. 1, pp. 155-56; Ex. 1b, pp. 10-12.)

Even if Lei previously made statements inconsistent with his trial testimony that Spears

got in the car, quickly took the gun, and exited all while the car was stopped, there is no

indication, and Spears does not argue, that Lei ever changed his statement that Spears took

the gun. Lei consistently stated that Spears was in possession of Lei’s gun and that he took

the gun from Lei’s vehicle. In the light of Lei’s consistent recounting that Spears took the

gun from his car, and the State’s overall evidence of guilt, Spears fails to show that the state

court unreasonably determined that did he not show a reasonable probability of a different

outcome had counsel questioned Lei further about this matter.

Next, Spears asserts that Lei gave inconsistent information as to whether he knew

who Spears was at the time of the offense. Spears states that Lei testified he did not know

4 The Court presumes the state court ruled on the merits of all aspects of Spears’s claim, even if not discussed

in the state court’s analysis. , 568 U.S. 289 (2013). But if the state court overlooked

these portions of Spears’s claim, and he is therefore entitled to de novo review, he fails to show that counsel

performed deficiently or that he was prejudiced by counsel’s performance. The variance between the alleged

inconsistencies if pointed out fails to show that the jury would have come to a different conclusion.

Spears’s name and found out later from a friend that it was Poo-Poo. Spears asserts that at

his deposition, Lei testified that he found out Spears’s nickname was Poo-Poo because he

had heard people yelling it when Spears was around.

The state court found that Lei testified both at deposition and at trial that the person

who took his firearm was “Poo-Poo.” (Doc. 13-2, Ex. 27, p. 40.) Thus, the state court

found that counsel was not ineffective and that Spears could not show prejudice. ( .)

The state court’s decision was not unreasonable. At deposition, when Lei was asked

the name by which he knew Spears, Lei stated, “The street call [sic] him Po Po or Poo

Poo, whatever. I don’t know.” (Doc. 13-2, Ex. 1b, p. 6.) Lei testified at deposition that he

recognized Poo-Poo because he previously heard people calling out to him and that Poo-

Poo jumped in his car and took his firearm. ( .) At trial, Lei testified that he knew the

person who jumped in his car by the nickname Poo-Poo, and he identified Spears in the

courtroom. (Doc. 13-2, Ex. 1, pp. 152-53.) It was on cross-examination, when counsel

asked Lei if he knew the name of the person who took his gun, that Lei answered, “I didn’t

know, no. I mean, I wasn’t sure until I find out from my friend that his name’s, you know,

Poo-Poo, so . . . .” (Doc. 13-2, Ex. 1, p. 160.)

To the extent that this answer could be considered inconsistent because, as Spears

suggests, it could be interpreted as indicating that Lei did not know of Spears’s “Poo-Poo”

nickname before the incident, any such inconsistency was brought out by counsel. Thus,

counsel did call this matter to the jury’s attention. Moreover, Lei consistently stated that

he knew Spears as Poo-Poo. Spears fails to show that counsel performed deficiently for not

addressing the matter further, or that he was prejudiced as a result. Accordingly, Spears

does not show that the state court unreasonably denied this portion of his claim.

Spears also addresses inconsistent statements concerning whether Lei and Smith

had an agreement about Smith’s attempt to retrieve his gun. At trial, Lei testified that he

did not have an agreement with Smith about how to get the gun back. (Doc. 13-2, Ex. 1,

p. 162.) But Lei testified at his deposition that he gave Smith $80 the next day. (Doc. 13-

2, Ex. 1b, pp. 14-17.) Smith testified at trial that they did have an agreement, and that Lei

was going to give $80 to whoever brought the gun back, but that she received no money.

(Doc. 13-2, Ex. 1, pp. 179-80.)

In denying Spears’s claim, the state court stated that it could “find no instance where

the agreement was brought up with Mr. Lei during trial.” (Doc. 13-2, Ex. 27, p. 40.) But

the state court noted that, as Lei testified at deposition that he had an agreement to pay

Smith $80, there was no inconsistency between his earlier statement and Smith’s trial

testimony. ( .) The state court found that counsel did not perform deficiently, and that

Spears could not show prejudice. ( .)

Spears does not show entitlement to relief. Spears correctly notes that Lei was asked

about an “agreement” at trial and that he stated he had no agreement with Smith about

recovering the gun. (Doc. 13-2, Ex. 1, p. 162.) But, as this question was asked on cross-

examination, and counsel also questioned Smith about the agreement on cross-

examination, counsel drew out this discrepancy in their statements. ( ., pp. 179-80.)Thus,

counsel performed as Spears says he should have to the extent that he used cross-

examination to bring out inconsistencies between the witnesses’ recollections at trial.

And Spears does not show that counsel was deficient or that he was prejudiced when

counsel did not cross-examine Lei about his deposition. Whether there was an agreement

between Lei and Smith after the gun was taken does not affect the consistent testimony

that Spears took the gun from Lei’s car and that he had it with him when he got into

Smith’s car. Spears does not show that the state court unreasonably denied his claim.5

Several specific instances of ineffective assistance of trial counsel alleged in Ground

One are procedurally defaulted. Spears did not raise them in his postconviction motion.

(Doc. 13-2, Ex. 27, pp. 21-25.) Spears cannot return to state court to present the claims in

an untimely, second postconviction motion. Fla. R. Crim. P. 3.850(b), (h). Despite

Spears’s failure to raise the claims in state court, they are technically exhausted. State-court

remedies are exhausted “when they are no longer available, regardless of the reason for their

5 Even assuming that the state court’s denial of this argument was based on an unreasonable determination

of fact because the state court incorrectly believed that Lei was not questioned about the agreement at trial,

and he is therefore entitled to de novo review of the claim, Spears does not show entitlement to relief. He

fails to show that counsel performed deficiently or that he suffered resulting prejudice.

unavailability.” , 596 U.S. 366, 378 (2022) (quoting ,

548 U.S. 81, 92-93 (2006)). But any federal due process claim is procedurally defaulted

because it was “not presented to the state courts ‘consistent with [the State’s] own

procedural rules’ ” requiring the claim to be brought in a postconviction motion. ,

596 U.S. at 378 (quoting , 529 U.S. 446, 453 (2000)). Spears does

not show that an exception applies to overcome the default. . Notwithstanding the

default, Spears does not show entitlement to relief in any event.6

First, Spears contends that counsel should have addressed Smith’s inconsistent

statements as to whether Smith said she contacted police while Spears was in her vehicle.

On cross-examination, counsel asked Smith if she called police when Spears was in her car,

and she answered, “No. They spotted me. They followed me.” (Doc. 13-2, Ex. 1, p. 176.)

Counsel began to ask, “So at no time do you contact –” when Smith corrected herself and

said, “Yes, yes, yes. They w[ere] on the phone, and they followed me, yes, sir.” ( ., p. 177.)

Spears does not show that counsel was ineffective. Counsel addressed this matter on cross-

examination, and Spears does not show a reasonable probability that the outcome would

have been different had counsel taken further action.

6 Respondent states that Ground One is exhausted “only to the extent” raised in Spears’s state court

postconviction proceeding, but does not specify which particular instances of ineffective assistance of

counsel raised in Ground One are defaulted. Thus, the Court will address the merits. (Doc. 12, p. 14.)

Next, Spears argues that counsel did not adequately emphasize each inconsistency

in his closing argument. Spears’s claim is vague and conclusory. , 941

F.2d 1551, 1559 (11th Cir. 1991) (stating that a petitioner’s “unsupported allegations” that

are “conclusory in nature and lacking factual substantiation” cannot sustain an ineffective

assistance claim). And counsel did argue that Smith and Lei were unreliable and that their

stories made no sense. (Doc. 13-2, Ex. 1, pp. 267-71.) Spears fails to show that counsel

was ineffective for not addressing any inconsistencies with more specificity.

These two witnesses saw Spear holding a gun, and the gun was found in the glove

compartment of Smith’s car after Spears got out of the front passenger seat. Spears’s

possession of the gun was the only element that the State had to prove beyond a reasonable

doubt to obtain a conviction. The two elements of the offense of felon in possession of a

firearm, as applicable to this case, are (1) the defendant has been convicted of a felony; and

(2) the defendant had in his care, custody, possession, or control, any firearm. § 790.23(1),

Fla. Stat. Spears did not contest that he was a convicted felon. (Doc. 13-2, Ex. 1, p. 267.)

The jury was free to believe the witnesses’ testimony on the question of whether Spears

possessed the firearm, even if there were some inconsistencies in their statements about

other details. Spears does not show a reasonable probability of a different outcome had

counsel more specifically highlighted such inconsistencies during closing argument.

Finally, the Court notes that Spears cites , 405 U.S. 150

(1972). As Respondent notes, any claim is procedurally defaulted because Spears

did not raise it in his state postconviction motion. (Doc. 13-2, Ex. 27, pp. 12-34.) Spears

does not show that an exception applies to overcome the default. And as he does not allege

facts to show that the State knowingly presented false testimony, he fails to show any

violation of . ., 580 F.3d 1183, 1208 (11th Cir.

2009) (stating that to show a violation of , a petitioner “must establish that (1) the

prosecutor knowingly used perjured testimony or failed to correct what he subsequently

learned was false testimony; and (2) such use was material—i.e., that there is any reasonable

likelihood that the false testimony could have affected the judgment” (quoting

, 465 F.3d 1249, 1253 (11th Cir. 2006))). Spears is not entitled to relief on Ground

One.

B. Ground Two

Spears argues that the trial court violated his Fourteenth Amendment rights by

prohibiting him from asking Smith about her non-compliance with subpoenas to appear

for deposition and for trial. When Smith did not appear for trial, the trial court issued a

writ of bodily attachment and a police officer picked Smith up and brought her to the

courthouse. (Doc. 13-2, Ex. 1, pp. 103-05, 120-21, 125.) According to Spears, the trial

court told his counsel in off-the-record comments that were not transcribed that “we will

not let the jury know the surrounding circumstances of Mildred Smith being here today.”

(Doc. 1-1, p. 18.) Spears asserts that this information would have impacted Smith’s

credibility.

Spears acknowledges that he did not raise this claim of trial court error on direct

appeal, stating that he “was not aware of the issue” and that the information is “newly

discovered through studying.” (Doc. 1, p. 7.) A claim of trial court error should be raised

on direct appeal. , 807 So.2d 55, 63 (Fla. 2001). Spears’s failure to raise this

claim on direct appeal results in the claim’s procedural default. , 596 U.S. at

378.

Spears does not establish that an exception applies to overcome the default. He does

not allege that the cause and prejudice exception applies. To the extent his reference to

newly discovered evidence can be interpreted as arguing for the application of the

fundamental miscarriage of justice exception, his argument is not persuasive.

Spears has not identified any newly discovered evidence that shows his actual

innocence. , 513 U.S. 298, 324 (1995) (stating that to show actual

innocence, a petitioner must present “new reliable evidence . . . that was not presented at

trial”). Smith’s failure to comply with subpoenas was known to him at the time of trial.

Moreover, Spears does not show how Smith’s reluctance to appear proves his factual

innocence. , 523 U.S. 614, 623 (1998) (stating that actual

innocence “means factual innocence, not mere legal insufficiency”); , 547 U.S.

518, 538 (2006) (stating that the newly discovered evidence must show “that more likely

than not, in light of the new evidence, on reasonable juror would find him guilty beyond a

reasonable doubt . . . .”).

Because Spears does not overcome the procedural default, Ground Two is barred

from federal habeas review.

C. Ground Three

Spears argues that trial counsel was ineffective for failing to move to suppress

evidence of the firearm based on the State’s alleged inability to establish a chain of custody

for it. Spears states that Officers Brown and Mongeon testified that police recovered a

firearm from Smith’s vehicle, “but only a property receipt form was placed into discovery

and no firearm was ever produced at trial.” (Doc. 1-1, p. 26.)

The state court denied Spears’s claim. The state court found that even though the

firearm was returned to Lei and was not collected by police, direct evidence showed that

Spears was in possession of a firearm. (Doc. 13-2, Ex. 27, p. 39.) The state court noted

that Lei identified Spears as the person who took the firearm, that Smith stated Spears

placed the firearm in the glovebox of her car, that the firearm recovered from Smith’s

vehicle matched Lei’s firearm, and that Officer Brown returned the firearm after Lei

identified it. ( .) The state court found that, under these circumstances, a motion to

suppress based on Spears’s proposed argument about the chain of custody would not have

been granted. ( .)

Spears does not show that the state court unreasonably applied . Whether

a motion to suppress evidence would have been granted is a question of state evidentiary

law. This Court must defer to the state court’s determination that a motion to suppress

evidence of the firearm based on a chain of custody argument would have been

unsuccessful. , 876 F.3d 1290, 1295 (11th Cir. 2017)

(“[A]lthough ‘the issue of ineffective assistance—even when based on the failure of counsel

to raise a state law claim—is one of constitutional dimension,’ [a federal court] ‘must defer

to the state’s construction of its own law’ when the validity of the claim that . . . counsel

failed to raise turns on state law.” (quoting , 725 F.2d 1282, 1291

(11th Cir. 1984))). Thus, Spears cannot show that trial counsel was ineffective for failing

to raise a state law claim that the state court determined was without merit. at 1297

(“[A]n attorney will not be held to have performed deficiently for failing to perform a futile

act, one that would not have gotten his client any relief.”).

Spears does not show that the state court’s decision involved an unreasonable

application of or was based on an unreasonable factual determination. He is not

entitled to relief on Ground Three.

V. CERTIFICATE OF APPEALABILITY

A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Instead, a district court or

court of appeals must first issue a certificate of appealability (COA). Jd. “A [COA] may

issue . . . only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To obtain a COA, Spears must show that

reasonable jurists would find debatable both the merits of the underlying claims and the

procedural issues he seeks to raise. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Spears

has not made the requisite showing. Finally, because Spears is not entitled to a COA, he

is not entitled to appeal in forma pauperis.

It is therefore ORDERED that Spears’s Petition for Writ of Habeas Corpus, (Doc.

1), is DENIED. The CLERK is directed to enter judgment against Spears and in

Respondent’s favor and to CLOSE this case.

ORDERED in Tampa, Florida, on December 5, 2023.

athryn’ Kimball Mizelle

United States District Judge

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