Jean-Philippe v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LESLY JEAN-PHILIPPE,

Petitioner,

v. Case No. 3:20-cv-789-MMH-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Lesly Jean-Philippe, an inmate of the Florida penal system,

initiated this action by filing a Petition for Writ of Habeas Corpus under 28

U.S.C. § 2254 (Petition; Doc. 1).1 He proceeds on a Second Amended Petition

(Doc. 7) with exhibits (Docs. 7-1 through 7-2). In the Second Amended Petition,

Jean-Philippe challenges a 2011 state court (Duval County, Florida) judgment

of conviction for first-degree murder and aggravated battery with a deadly

1 For all pleadings and exhibits filed in this case, the Court cites to the

document and page numbers as assigned by the Court’s Electronic Case Filing

System.

weapon. He raises four grounds for relief.2 See Second Amended Petition at 8-

29. Respondents submitted a Response to the Second Amended Petition

(Response; Doc. 17). They also submitted exhibits. See Docs. 17-1 through 17-

29; Docs. 9-1 through 9-10. Jean-Philippe filed a brief in reply (Reply; Doc. 21).

This action is ripe for review.

II. Relevant Procedural History

On January 7, 2010, a grand jury returned an indictment charging Jean-

Philippe with the first-degree murder of his wife, Elkie Jean-Philippe (Elkie)

(Count 1), armed burglary (Count 2), and aggravated battery with a deadly

weapon on his sister-in-law, Roya Gordon (Gordon) (Count 3). See Doc. 17-2.

On Jean-Philippe’s motion, and with the agreement of the State, the court

dismissed the armed burglary charge. See Doc. 17-5 at 5-6. On March 10, 2011,

a jury convicted Jean-Philippe of first-degree murder as charged in Count 1

and aggravated battery with a deadly weapon as charged in Count 3. See Doc.

17-12; Doc. 17-20 at 8-10. Following the jury’s unanimous recommendation,

the court sentenced Jean-Philippe to death for the first-degree murder

conviction and fifteen years imprisonment for the aggravated battery

2 Although Jean-Philippe enumerates three grounds for relief in the Second

Amended Petition, he also raises an actual innocence claim. See Second Amended

Petition at 16, 23, 29.

conviction. Doc. 17-12 at 3-4. On direct appeal to the Florida Supreme Court,

Jean-Philippe raised five claims:

(1) whether the trial court erred in admitting evidence

of text messages sent from [Jean-Philippe’s] cell phone

to his sister-in-law and to his wife; (2) whether the

trial court erred in finding that the murder was CCP

[cold, calculated, and premeditated]; (3) whether the

trial court erred in giving great weight to the finding

that the murder was HAC [heinous, atrocious, or

cruel]; (4) whether the sentence of death is

proportionate; and (5) whether Florida’s capital

sentencing scheme violates Ring v. Arizona, 536 U.S.

584, 122 S. Ct. 2428, 153 L.Ed.2d 556 (2002).

Jean-Philippe v. State, 123 So. 3d 1071, 1077-78 (Fla. 2013). On June 13, 2013,

the Florida Supreme Court affirmed Jean-Philippe’s convictions and

sentences, id., and on October 24, 2013, issued the mandate. See Lesly Jean-

Philippe v. State, No. SC11-1274, Mandate (Fla. Oct. 24, 2013).3

In 2015, Jean-Philippe, through counsel, filed a fourth amended motion

for postconviction relief under Florida Rule of Criminal Procedure 3.851. See

Doc. 17-16. (Rule 3.851 Motion). In his Rule 3.851 Motion, filed November 30,

2015, Jean-Philippe argued that his trial counsel were ineffective when they

failed to: (1) object to the State’s allegedly incorrect recitation of law during the

penalty phase; (2) investigate Jean-Philippe and Elkie’s marital issues; (3)

3 The Court takes judicial notice of Jean-Philippe’s state court dockets. See

Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (“[D]ocket sheets are

public records of which the court could take judicial notice.”).

request DNA testing on certain evidence found at the scene; (4) hire an expert

witness to rebut the State’s theory that Jean-Philippe’s injuries were self-

inflicted; (5) hire an expert pathologist to rebut the medical examiner’s

testimony; (6) hire an expert crime scene analyst to rebut the testimony of

certain State witnesses; (7) challenge the State’s assertion that a tire jack

constituted a deadly weapon for purposes of the aggravated battery charge; (8)

object to the State’s theory of the case; (9) object to the admission of hearsay

statements; (10) argue self-defense or present any other theory of defense; (11)

properly advise Jean-Philippe regarding his right to testify in his own defense;

(12) seek a mental health evaluation of Jean-Philippe during the penalty

phase; (13) properly investigate and present mitigation witnesses during the

penalty phase; (14) hire an expert on Haitian culture to testify during the

penalty phase; (15) present Jean-Philippe’s mental health history as

mitigation evidence during the penalty phase; (16) consult an independent

forensic expert to rebut the State’s proffered evidence related to certain

aggravating factors during the penalty phase; (17) seek a mistrial during the

penalty phase; and (18) present an adequate penalty phase closing argument.

See id. at 1-56. In addition to the ineffective assistance of counsel arguments

in his Rule 3.851 Motion, Jean-Philippe argued that (1) the State committed a

Brady4 violation; (2) the State presented inadmissible evidence and testimony

during the guilt phase; (3) there was cumulative error; and (4) he may be

incompetent by the time of execution. Id. at 56-65.

While his Rule 3.851 Motion was pending, Jean-Philippe, through

counsel, filed a motion to vacate his death sentence pursuant to Hurst v.

Florida, 577 U.S. 92 (2016). See Doc. 17-28. The circuit court denied the motion

on December 5, 2016.5 See Doc. 17-29. But, on November 9, 2017, the parties

entered into a stipulated agreement that Jean-Philippe would waive all claims

concerning the guilt phase of his trial raised in his Rule 3.851 Motion, and

would be resentenced to life in prison.6 See Doc. 17-17 at 2; Doc. 17-19 at 46.

4 Brady v. Maryland, 373 U.S. 83 (1963).

5 In denying the motion, the court stated: “Since the filing of the instant

[m]otion, the Florida Supreme Court released two opinions: Hurst v. State, 41 Fla. L.

Weekly S433 (Fla. Oct. 14, 2016) and Perry v. State, 41 Fla. L. Weekly S449 (Fla. Oct.

14, 2016). In Hurst v. State, the Florida Supreme Court specifically ruled that the

United States Supreme Court’s decision in Hurst v. Florida did not trigger the

provision of section 775.082(2). While not conceding, [Jean-Philippe] recognized these

opinions were controlling.” See Doc. 17-29 at 1 (emphasis removed).

6 The terms of the stipulated agreement were as follows:

1. The State concedes resentencing pursuant to Hurst v.

Florida.

2. [Jean-Philippe] agrees to waive all grounds asserted for

a new guilt phase in his pending Motion for Post-

Conviction Relief filed pursuant to Rule 3.851, Florida

Rules of Criminal Procedure.

3. In consideration of [Jean-Philippe’s] waiver, the State

of Florida will file a Notice withdrawing its Notice of

Intent to Seek the Death Penalty.

4. It is agreed and stipulated that the original sentence as

to Count 1 will be vacated and [Jean-Philippe] will be

re-sentenced to life in prison without the possibility of

parole as to Count 1 of the Indictment.

The court accepted the stipulated agreement after conducting a colloquy with

Jean-Philippe and resentenced Jean-Philippe to a term of life in prison for the

first-degree murder conviction in Count 1. See Doc. 17-18; Doc. 17-20 at 20-24.

On November 1, 2018, Jean-Philippe filed a motion for postconviction

relief pursuant to Florida Rule of Criminal Procedure 3.850. See Doc. 9-4 (Rule

3.850 Motion). In the Rule 3.850 Motion, Jean-Philippe argued his trial counsel

were ineffective when they (1) failed to seek suppression of text messages

obtained in a warrantless search, (2) failed to object to the admission of the

text messages on double-hearsay grounds, and (3) interfered with his right to

testify and failed to prepare and present a viable defense. Id. In addition, Jean-

Philippe argued his postconviction counsel was ineffective when she

misadvised him about waiving his postconviction rights and when she failed to

notify the court that she was not certified under Florida Rule of Criminal

Procedure 3.112(f). Id. The state court denied relief. See Doc. 17-20 at 1-6.

The First District Court of Appeal (First DCA) per curiam affirmed the

state court’s denial of the Rule 3.850 Motion on March 31, 2020, and issued the

mandate on April 28, 2020. Doc. 17-27. Jean-Philippe filed a pro se motion for

rehearing, which the First DCA struck as unauthorized on May 7, 2020. See

See Doc. 17-19 at 46.

Doc. 9-6 at 16. Jean-Philippe filed the instant action under 28 U.S.C. § 2254 on

June 8, 2020.7 See Doc. 1; Doc. 16.

III. One-Year Limitations Period

The Court previously determined that this action was timely filed within

the one-year limitations period set forth in 28 U.S.C. § 2244. See Doc. 16.

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 [Jean-Philippe’s] claim[s]

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

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,[8] supra, at 747-

748, 111 S. Ct. 2546; Sykes,[9] 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, 617-18, 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.

Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)

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

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

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[10]

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).

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.

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

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, Jean-Philippe argues his trial counsel were ineffective

when they failed to seek suppression of text messages obtained from his cell

phone through a warrantless search. See Second Amended Petition at 8-16.

Jean-Philippe raised a substantially similar claim as ground one in his Rule

3.850 Motion. See Doc. 9-4 at 9-18. The postconviction court found the claim

untimely, stating in pertinent part:

Where a court “grants relief to a defendant

which ultimately results in an amended judgment

being entered, as to any new issues raised by entry of

the amended judgment, the time period for filing a rule

3.850 motion begins to run at the time of the amended

judgment.” Rogers v. State, 25 So. 3d 636[] (Fla. 1st

DCA 2009). However, generally the two-year time

limit contained in Rule 3.850 []is not tolled by other

collateral proceedings filed in the trial court, even if a

corrected sentence is entered. Marrero v. State, 967

So. 2d 934, 936 (Fla. 2d DCA 2007) (citing Joseph v.

State, 835 So. 2d 1221, 1222 n.3 (Fla. 5th DCA 2003);

Sireci v. State, 773 So. 2d 34, 44 (Fla. 2000) (holding

that guilt phase claims were time barred since

defendant[’]s convictions became final over two years

prior even though [d]efendant was later resentenced).

Accordingly, because the first two grounds

allege ineffective assistance of counsel for guilt phase

claims relating to his conviction, these claims are

untimely and will not be addressed.

Doc. 17-20 at 2-3. The First DCA affirmed without a written opinion. See Doc.

17-27.

Respondents argue that the postconviction court relied on an

independent and adequate state procedural ground when it found the claim

untimely, and therefore, Jean-Philippe is procedurally barred from federal

habeas relief. Response at 25-32. Alternatively, Respondents contend that the

claim lacks merit even if it is not procedurally barred. Id. at 32-34. Jean-

Philippe disagrees, arguing that Ground One is meritorious, not procedurally

barred, and that even if it were barred, the exceptions to procedural default

apply to the claim. See Reply at 1-7.

The Eleventh Circuit has established a three-part test to determine

when a state court’s procedural ruling relies on an independent and adequate

state ground. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). “First, (1)

the last state court rendering judgment must clearly and expressly state it is

relying on a state procedural rule to resolve the federal claim. . . . Second, the

state court’s decision on the procedural issue must rest entirely on state law

grounds and not be intertwined with an interpretation of federal law. . . . Third,

the state procedural rule must be adequate.” Id. (citations omitted and

emphasis added).

As applied here, the postconviction court’s untimeliness finding was

based on the procedural requirements of Rule 3.850, which is an independent

and adequate state procedural ground. See LeCroy v. Sec’y, Fla. Dep’t of Corr.,

421 F.3d 1237, 1260 n.25 (11th Cir. 2005) (“[T]he procedural requirements of

Florida’s Rule 3.850 constitute independent and adequate grounds under the

applicable law.”); Kimbrough v. Sec’y, Fla. Dep’t of Corr., 809 F. App’x 684,

692-93 (11th Cir. 2020) (holding the denial of a claim as untimely under Rule

3.850(b) “rested on an independent and adequate state procedural ground”).11

11 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

Second, the postconviction court’s untimeliness determination rested solely on

state procedural grounds without citing to or otherwise referencing federal

law. Thus, the postconviction court’s “ruling was not intertwined with federal

law.” Kimbrough, 809 F. App’x at 692.

Third, the procedural rule was adequate to support the postconviction

court’s untimeliness finding. See id. That is, the postconviction court properly

applied a regularly followed procedural default principle to find Jean-

Philippe’s claim untimely. A Rule 3.850 motion for postconviction relief must

be filed within two years of the criminal judgment “unless the motion alleges

that the facts on which the claims for relief are predicated could not have been

discovered earlier by the exercise of due diligence.” See Kimbrough, 809 F.

App’x at 692 (citing Fla. R. Crim. P. 3.850(b)(1)). “The two-year limitation is

not tolled by other collateral proceedings filed in the trial court, even if a

corrected sentence is entered.” Joseph v. State, 835 So. 2d 1221, 1222 n.3 (Fla.

5th DCA 2003); Gillis v. State, 32 So. 3d 681, 682 (Fla. 2d DCA 2010) (finding

that defendant’s resentencing, which occurred after direct review proceedings

concluded, did not toll two-year time limit for filing Rule 3.850 motion); Zeigler

v. State, 632 So.2d 48, 50 (Fla. 1993) (although defendant’s death penalty

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

sentence was vacated in 1988, the two-year period for his Rule 3.850 motion

raising guilt phase claims expired on January 1, 1987, because the information

upon which the claims were based was ascertainable prior to the finality date

of the judgment and sentence). Here, the postconviction court determined that

the two ineffective assistance of trial counsel grounds in Jean-Philippe’s Rule

3.850 Motion related to the guilt phase of his 2011 convictions, and as such,

were untimely. Therefore, relief on those claims – which Jean-Philippe now

raises as Grounds One and Two in his Second Amended Petition – is

procedurally barred for purposes of federal habeas review.

In an effort to avoid the bar, Jean-Philippe cites Martinez and argues

that his trial counsel and postconviction counsel’s ineffective assistance

constitutes cause and actual prejudice. See Second Amended Petition at 13-15;

Reply at 1-2. Jean-Philippe also argues that he is entitled to the benefit of the

fundamental miscarriage of justice exception. See Second Amended Petition at

15-16. But, even if Ground One is not procedurally barred, it is without merit.

Assuming arguendo that trial counsel’s failure to seek suppression of the text

messages constituted deficient performance, Jean-Philippe has not shown that

a reasonable probability exists the outcome of his trial would have been

different if the text messages had been suppressed.

In Florida, premeditated first-degree murder is defined as “[t]he

unlawful killing of a human being[] when perpetrated from a premeditated

design to effect the death of the person killed or any human being.” §

782.04(1)(a), Fla. Stat. “Premeditation is a fully formed conscious purpose to

kill that may be formed in a moment and need only exist for such time as will

allow the accused to be conscious of the nature of the act he is about to commit

and the probable result of that act.” Asay v. State, 580 So. 2d 610, 612 (Fla.

1991). “Evidence from which premeditation may be inferred includes such

matters as the nature of the weapon used, the presence or absence of adequate

provocation, previous difficulties between the parties, the manner in which the

homicide was committed, and the nature and manner of the wounds inflicted.”

Jones v. State, 321 So. 3d 790, 801 (Fla. 4th DCA 2021) (quoting Larry v. State,

104 So. 2d 352, 354 (Fla. 1958)).

At trial, the State presented evidence that Jean-Philippe and Elkie were

experiencing issues in their marriage and that Elkie wanted a divorce. Doc. 17-

6 at 34, 39-40; Doc. 17-8 at 70-73. Approximately one week before the murder,

Jean-Philippe flew to Rhode Island to visit his family. Doc. 17-6 at 42-43. On

the day of the murder, August 26, 2009, Gordon flew to Jacksonville to visit

Elkie. Doc. 17-6 at 41. Jean-Philippe also flew back to Jacksonville that day.

See Doc. 17-7 at 56-57. Gordon testified that Jean-Philippe was aware of her

travel plans, but neither she nor Elkie were aware that Jean-Philippe was back

in Jacksonville. Doc. 17-6 at 43-47, 101, 107. Jean-Philippe’s cell phone call

logs, which were admitted at trial, showed

repeated calls from [Jean-Philippe’s] phone to the

sisters’ phones on the day of the murder, including

more than sixty calls to Elkie’s alone. In addition,

these call records showed that as [Jean-Philippe]

traveled from Rhode Island to Jacksonville on the day

of the murder, his phone did too. The records reflected

that the phone’s servicing areas changed from Rhode

Island to Washington, D.C., and finally to

Jacksonville. Moreover, Gordon’s testimony

corroborated this evidence. She testified that she and

[Jean-Philippe] communicated through their cell

phones during the period that he was in Rhode Island

and particularly on the day of the murder. On August

26, they used their cell phones to speak to each other

by phone, to leave recorded messages, and to send and

receive text messages. For example, Gordon told the

jury that soon after she arrived in Jacksonville, she

spoke to [Jean-Philippe] when he called and that after

Elkie picked her up, [Jean-Philippe] called both of

their phones repeatedly.

See Jean-Philippe, 123 So.3d at 1078. A taxicab driver testified that he picked

up Jean-Philippe at the airport and drove him to Elkie’s apartment complex.

See Doc. 17-8 at 11-20. When Jean-Philippe reached the apartment, he

knocked on the door and pretended to be a pizza delivery person. Doc. 17-6 at

48-51. Because the sisters had not ordered any pizza, Elkie asked Gordon to

accompany her to the door. Id. Elkie opened the door, at which point Jean-

Philippe barged inside and hit Gordon on the head with a tire jack. Id. at 50-

51. Gordon fled to the back of the apartment. Id. at 51. Gordon testified that

she heard Elkie screaming and pleading with Jean-Philippe, id. at 52, and that

when Gordon fled the apartment minutes later to call 911, she saw Elkie lying

on the floor in the kitchen and Jean-Philippe standing over her with his arms

raised in the air, id. at 55-57. When law enforcement officers arrived and

entered the apartment, they found Elkie lying on the kitchen floor and bleeding

profusely from numerous stab wounds. Doc. 17-6 at 164-65, 198; Doc. 17-7 at

10-12. Officers also found Jean-Philippe lying on the floor unconscious and

bleeding, with two knives near his hands. Doc. 17-6 at 166-67, 170. Elkie

passed away shortly after she was transported by ambulance to the hospital.

Doc. 17-8 at 155-56. The forensic pathologist who performed Elkie’s autopsy

testified at trial that

[Elkie] was in shock and ultimately bled to death as a

result of the numerous stab wounds. Specifically, she

had fifty-two or fifty-three stab wounds and suffered

injuries to her ear, lip, head, neck, nose, arms, fingers,

shoulder, back, chest, breast, and abdomen. The

pathologist testified that each of seven or eight of the

stab wounds alone could have been fatal. This included

penetrating wounds to the victim’s lung, liver, and

stomach. In addition, the victim had defensive wounds

to her arms and hands and had suffered several blunt

force injuries. Because of the nature of the victim’s

wounds, death was not instantaneous. She felt pain,

was conscious, and could still talk, move, and fight her

attacker throughout the assault.

See Jean-Philippe, 123 So.3d at 1076; see also Doc. 17-8 at 155-86.

Even without the text messages, the foregoing evidence was sufficient to

support the jury’s verdict.12 Thus, even assuming Jean-Philippe’s trial counsel

performed deficiently by not seeking suppression of the text messages, Jean-

Philippe has failed to establish prejudice. He has not shown that a reasonable

probability exists that the outcome would have been different if the text

messages had been suppressed. Accordingly, relief on the claim in Ground One

is due to be denied.

12 Notably, the Florida Supreme Court also determined there was substantial

evidence to support the jury’s first-degree murder verdict without considering Jean-

Philippe’s text messages or call logs:

[Jean-Philippe] was indicted for the first-degree,

premeditated murder of his wife. “Premeditation is a fully

formed conscious purpose to kill that may be formed in a

moment and need only exist for such time as will allow the

accused to be conscious of the nature of the act he is about

to commit and the probable result of that act.” Asay v.

State, 580 So.2d 610, 612 (Fla. 1991). The evidence shows

that on the day of the murder, [Jean-Philippe] flew to

Jacksonville, waited outside his marital home for his wife

to return, obtained a weapon, and employed a ruse to gain

entry into the apartment. He then beat and repeatedly

stabbed his wife, injuring her head, lung, breast, back,

arms, and other parts of her body over an extended period

of time as she screamed and pleaded for help. See Miller v.

State, 42 So.3d 204, 228 (Fla. 2010) (noting the location of

wounds and force used in stabbings constituted competent,

substantial evidence supporting premeditation), cert.

denied, ––– U.S. ––––, 131 S.Ct. 935, 178 L.Ed.2d 776

(2011). In light of this evidence, we hold that competent,

substantial evidence supports the jury’s finding of first-

degree murder beyond a reasonable doubt.

Jean-Philippe, 123 So. 3d at 1084.

B. Ground Two

As Ground Two, Jean-Philippe argues his trial counsel were ineffective

when they: (A) interfered with his right to testify and (B) failed to prepare and

present a defense. See Second Amended Petition at 17-22. Jean-Philippe raised

a substantially similar claim as ground two in his Rule 3.850 Motion. See Doc.

9-4 at 19-24. The postconviction court rejected this claim as untimely for the

same reasons stated in Ground One. See Doc. 17-20 at 2-3. The First DCA

affirmed without a written opinion. See Doc. 17-27.

For the reasons previously discussed, relief on the claims in Ground Two

is procedurally barred for purposes of federal habeas review. Even assuming

the claims in Ground Two are not procedurally barred, Jean-Philippe is not

entitled to relief.

As to Subclaim A, “[a] criminal defendant has a fundamental

constitutional right to choose whether to testify in his own defense.” United

States v. Anderson, 1 F.4th 1244, 1253 (11th Cir. 2021). That right is personal

and fundamental, meaning neither the court nor counsel can waive it. United

States v. Teague, 953 F.2d 1525, 1532 (1992). Counsel gives ineffective

assistance with respect to a defendant’s right to testify where counsel “has

refused to accept the defendant’s decision to testify and refused to call him to

the stand, or where defense counsel never informed the defendant of his right

to testify and that the final decision belongs to the defendant alone.” Gallego

v. United States, 174 F.3d 1196, 1197 (11th Cir. 1999). “Where the defendant

claims a violation of his right to testify by defense counsel, the essence of the

claim is that the action or inaction of the attorney deprived the defendant of

the ability to choose whether or not to testify in his own behalf.” Teague, 953

F.2d at 1534. Importantly, however, an attorney is not deficient for

strategically advising a defendant not to take the stand. Id. at 1533 (“[I]f

defense counsel believes that it would be unwise for the defendant to testify,

counsel may, and indeed should, advise the client in the strongest possible

terms not to testify.”).

The record reflects that at the close of the State’s case in chief, the trial

court engaged in a lengthy colloquy with Jean-Philippe to ensure that he was

voluntarily choosing not to testify:

THE COURT: And, Mr. Jean-Philippe, you have heard

your lawyer indicate, first, that you do not wish to call

– you’re not going to call any witnesses on your own

behalf; is that right?

THE DEFENDANT: Yes, sir.

THE COURT: Have you had adequate time to discuss

that decision with your counsel?

THE DEFENDANT: Yes, sir.

THE COURT: And do you agree with her decision in

that regard?

THE DEFENDANT: Yes, sir.

THE COURT: Included in that statement is the

understanding you are not going to testify in your own

behalf; is that true?

THE DEFENDANT: Yes, sir.

THE COURT: And while you have three very good

lawyers, who I’m sure have discussed thoroughly with

you your constitutional rights in that regard, I want to

talk about that with you for a moment.

You have the absolute constitutional right not to

testify. I will instruct the jury that they are not

permitted to infer your guilt from your exercise of your

right to remain silent and they are not to even be

influenced in any way by your decision not to testify.

While you have the absolute . . . constitutional right

not to testify, you also have the absolute constitutional

right to testify. Whether or not to testify is a decision

that you, and you alone, can make. Your friends and

family members cannot make that decision for you.

Your lawyers cannot make that decision for you. Only

you can make that decision.

I encourage you to consider carefully the sage

advice of your lawyers, but, ultimately the decision of

whether or not to testify rests with you.

Understanding what I have explained to you, do you

still wish not to testify in this case?

THE DEFENDANT: Yes, Your Honor.

THE COURT: During the course of this trial, have you

had adequate opportunity to discuss decisions related

to witnesses and jury selection, things of that sort?

Have you had adequate time to discuss all of those

matters with your lawyer?

THE DEFENDANT: Yes, sir.

THE COURT: And, as it pertains to jury selection and

the calling witnesses, you agree with your lawyers’

decisions in that regard? Is that a true statement?

THE DEFENDANT: Yes, Your Honor.

See Doc. 17-9 at 70-72.

“It is apparent from th[is] colloquy that [Jean-Philippe’s] counsel did not

prevent [him] from testifying or otherwise interfere with his right to take the

stand.” Ruiz v. Sec’y, Dep’t of Corr., No. 8:06-cv-2086-EAK-TGW, 2008 WL

786327, at *4 (M.D. Fla. Mar. 20, 2008). To the contrary, Jean-Philippe “was

well aware of his right to testify and voluntarily chose not to do so.” Id.; see

also Ho v. Sec’y, Dep’t of Corr., No. 20-cv-80010, 2020 WL 7890670, at *13 (S.D.

Fla. Nov. 5, 2020) (finding that, because the trial court “court conducted a

thorough colloquy with [p]etitioner,” his “decision not to testify was voluntary

and knowingly made, without any deficiency on counsel’s part”).13 Because the

ultimate decision not to testify rested with Jean-Philippe, not his counsel, the

Court finds that he has not shown deficient performance by his trial counsel

as to this issue. Therefore, relief on Subclaim A is due to be denied.

As to Subclaim B, the record shows that after the State rested its case,

the trial court conducted the above colloquy regarding Jean-Philippe’s decision

not to testify or call any witnesses on his behalf. See Doc. 17-9 at 70-72. Jean-

13 The Court notes that although decisions of other district courts are not

binding, they too may be cited as persuasive authority. See Stone v. First Union

Corp., 371 F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court

would not be bound to follow any other district court’s determination, the decision

would have significant persuasive effects.”).

Philippe’s trial counsel then moved for judgment of acquittal, which the court

denied. Id. at 73. In Subclaim B, Jean-Philippe argues that his trial counsel

were ineffective for failing to present a “self-defense theory of defense and/or

heat of passion/hot blood defense” or any other viable defense that would

support a verdict for a lesser-included offense. See Second Amended Petition

at 17.

Trial attorneys should investigate “plausible lines of defense,”

Fortenberry v. Haley, 297 F.3d 1213, 1226 (11th Cir. 2002), but this duty does

not require counsel to “investigate substantially all plausible lines of defense.”

Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994). Indeed, the test

for ineffectiveness is neither whether counsel could have done more nor

whether the best criminal defense attorneys might have done more; in

retrospect, one may always identify shortcomings. Waters v. Thomas, 46 F.3d

1506, 1514 (11th Cir. 1995) (stating that “perfection is not the standard of

effective assistance”) (quotations omitted). Instead, the test is whether what

counsel did was within the wide range of reasonable professional assistance.

Ward, 592 F.3d at 1164 (quotations and citation omitted); Dingle v. Sec’y for

Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (“The question is whether

some reasonable lawyer at the trial could have acted as defense counsel acted

in the trial at issue and not what ‘most good lawyers’ would have done.”)

(citation omitted). Here, based on the record, Jean-Philippe has failed to carry

his burden of showing that his trial counsel’s representation fell outside that

range of reasonably professional assistance. Indeed, given the State’s evidence

and having agreed with the decision not to call any witnesses at all, Jean-

Philippe fails to suggest how counsel could have presented a “self defense” or

“heat of passion/hot blood” defense. Thus, relief on Subclaim B is due to be

denied.

C. Ground Three

As Ground Three, Jean-Philippe argues that his postconviction and

resentencing counsel was ineffective because she lacked postconviction

experience and misadvised him about his ability to seek future postconviction

relief. See Second Amended Petition at 23-29.

Jean-Philippe raised a substantially similar claim as ground three of his

Rule 3.850 Motion. See Doc. 9-4 at 29-34. The postconviction court denied

relief, stating in pertinent part:

Initially, this Court notes that “[i]neffective

assistance of postconviction counsel is not a cognizable

claim in Florida.” Netting v. State, 129 So. 3d 429, 432

(Fla. 2013) (citing Kokal v. State, 901 So. 2d 766, 778

(Fla. 2005)). This Court also finds the State withdrew

their notice of intention to seek the death penalty prior

to the resentencing hearing. (Ex. F.) Accordingly, the

resentencing was not a capital proceeding in which

counsel must meet such requirements. Additionally,

when this Court appointed counsel, it specifically

stated that she was “qualified counsel from the

Statewide Attorney Registry provided by the

Commission on Capital Cases having been found who

has agreed to represent the Defendant . . .” (Ex. G.)

Lastly, as the resentencing was a part of an

agreement, there is no reasonable probability the

result of the proceeding would have been different

with a different attorney.

Also within this Ground, Defendant states the

Stipulation and Waiver Defendant signed waiving his

guilt phase claims was unintelligent and involuntary

because he was misadvised by counsel. Defendant

suggests counsel misadvised him by instructing him to

execute the form without informing him of the

consequences thereof and that he was waiving “critical

postconviction claims.” (Def.’s Mot. at 33-34.)

At the time Defendant entered this stipulation,

this Court conducted a colloquy with Defendant to

ensure he understood the consequences of this

agreement. (Ex. H.) In that colloquy, Defendant

assured this Court that he had enough time to speak

to both of his attorneys and discussed “all of the facts

of this case that [they] believe to be important to any

potential resentencing hearing.” (Ex. H at 7.) He

further affirmed the lawyers answered all questions

he asked regards to the preparation of an evidentiary

hearing on his postconviction motion. (Ex. H at 7-8.)

Defendant assured this Court that his attorneys had

not failed to investigate anything in this case. (Ex. H

at 8.) Ultimately, Defendant insisted he had no

[]reservation whatsoever to even the smallest degree

as it pertains to the efficacy and the skilled

representation [counsel had] provided [him] during

the course of this matter. (Ex. H at 8.) The Court went

through each paragraph of the agreement to ensure

Defendant understood the entirety of the agreement.

(Ex. H at 9-10.) Defendant understood this agreement

meant he would have abandoned any claim that he

previously raised, alleging entitled him to a new trial

and guilt phase, and waiving all guilt phase issues for

a new sentence. (Ex. H at 9-10.) Accordingly, this

Court finds the record refutes Defendant’s current

allegations and, as such, this claim may be denied.

Russ v. State, 937 So. 2d 1199, 1201 (Fla. 1st DCA

2006) (“[W]here an appellant makes a clearly and

wholly inconsistent affirmance which contradicts his

later postconviction claim, such claim may be

summarily denied.”). Defendant is, therefore, not

entitled to relief.

Doc. 17-20 at 3-5. The First DCA affirmed the denial of relief without a written

opinion. See Doc. 17-27.

To the extent that the First DCA decided this claim on the merits,14 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, Jean-Philippe 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. Under Florida law, first-

degree murder is a capital felony punishable by either death or life in prison

without parole. §§ 775.082(1)(a) and 782.04(1)(a), Fla. Stat. After the State

14 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.

withdrew its notice of intent to seek the death penalty based on the agreement

reached between the parties during the Rule 3.851 postconviction proceeding,

the court resentenced Jean-Philippe to the only other possible sentence under

Florida law for first-degree murder—life in prison without the possibility of

parole. Thus, even assuming postconviction counsel performed deficiently by

virtue of her qualifications, or lack thereof, Jean-Philippe has not shown

prejudice as there is no reasonable probability that the result of his

resentencing would have been different had he been appointed a different

attorney.

Further, the record does not support Jean-Philippe’s contention that his

postconviction counsel misadvised him regarding the effect of the stipulated

agreement. During the lengthy colloquy regarding the agreement, the

postconviction court questioned Jean-Philippe regarding the terms of the

agreement:

THE COURT: The stipulation and waiver, and I’m

going to read it with you, the stipulation and waiver,

number one says, the State concedes resentencing

pursuant to Hurst [v.] Florida, which means . . . there

is an agreement between both yourself and the State

of Florida that a resentencing hearing is appropriate

in this case, do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Are you in agreement with that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Paragraph number two says the

defendant, which of course that’s you, the defendant

agrees to waive all grounds asserted for a new guilt

phase in his pending motion for post-conviction relief

filed pursuant to rule 3.851 Florida Rules of Criminal

Procedure. Do you understand what that paragraph

means?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And tell me in your own words what you

understand that paragraph to mean.

THE DEFENDANT: That I am withdrawing my 3.851

and all the guilt phase issues that pertain to my 3.851

and in exchange for this new sentence.

THE COURT: All right. And you understand that as a

result of this agreement if it’s accepted by the Court,

that as a result of this agreement you would . . . be

considered to have abandoned any claim that you have

previously raised that you contended at that time

entitles you to a new trial on guilt as well as the

penalty phase, is that what you want to do?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You have any questions of me as to legal

ramifications of that?

THE DEFENDANT: No, Your Honor.

THE COURT: And you understand, of course, as a

result that the jury’s previous verdict of guilty in this

case will remain undisturbed and you will be

adjudicated – will remain adjudicated, I should say,

guilty of First Degree Premeditated Murder as well as

the aggravated battery, you understand that?

THE DEFENDANT: Yes, Your Honor.

Doc. 17-20 at 36-39. This colloquy unequivocally demonstrates that Jean-

Philippe knowingly and voluntarily entered into the agreement with an

understanding of the consequences of the agreement. Additionally, during the

colloquy, Jean-Philippe affirmatively indicated that (1) he had spoken with his

postconviction counsel regarding the agreement, (2) his postconviction counsel

answered all of his questions, (3) he had no reservations regarding his counsel’s

performance during the course of postconviction proceedings, and (4) no one

coerced, threatened, or made any promises to him in order to get him to sign

the agreement. Id. at 34-35. On this record, Jean-Philippe has not shown

deficient performance by his postconviction counsel. Thus, relief on the claim

in Ground Three is due to be denied.

D. Ground Four

In Grounds One and Two of his Second Amended Petition, Jean-Philippe

also appears to raise a freestanding claim that he is “actually and factually

innocent” of first-degree premeditated murder. See Second Amended Petition

at 16, 23, 29.

Assuming this claim was properly exhausted and not procedurally

barred, Jean-Philippe is not entitled to relief. It is not apparent whether a

freestanding actual innocence claim is cognizable in a capital case on federal

habeas review. Johnson v. Warden, Ga. Diagnostic & Classification Prison, 805

F.3d 1317, 1324 (11th Cir. 2015) (citing Herrera v. Collins, 506 U.S. 390, 417

(1993); In re Davis, 565 F.3d 810, 816 (2009); Jordan v. Sec’y Dep’t of Corr.,

485 F.3d 1351, 1356 (11th Cir. 2007)). However, assuming arguendo such a

claim is cognizable, the Eleventh Circuit has stated:

The Supreme Court in Herrera[15] assumed, but did

not hold, that “in a capital case a truly persuasive

demonstration of ‘actual innocence’ made after trial

would render the execution of a defendant

unconstitutional, and warrant federal habeas relief if

there were no state avenue open to process such a

claim.” 506 U.S. at 417, 113 S.Ct. 853. But the Court

made clear that the required “truly persuasive

demonstration” should, and would, be very difficult to

make. Id. It acknowledged the “very disruptive effect

that entertaining claims of actual innocence would

have on the need for finality in capital cases, and the

enormous burden that having to retry cases based on

often stale evidence would place on the States.” Id.

That is why the Court emphasized that “the threshold

showing for such an assumed right would necessarily

be extraordinarily high.” Id. (emphasis added).

In re Dailey, 949 F.3d 553, 560 (11th Cir. 2020). Based on a review of the record

and the pleadings, the Court finds Jean-Philippe has wholly failed to make the

requisite showing. Accordingly, insofar as Jean-Philippe raises an actual

innocence claim, he is not entitled to federal habeas relief.

15 Herrera v. Collins, 506 U.S. 390 (1993).

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Jean-Philippe seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. The

Court should issue a certificate of appealability only if the petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, Jean-Philippe “must

demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.

274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that

“the issues presented were ‘adequate to deserve encouragement to proceed

further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Second Amended Petition (Doc. 7) is DENIED, and this action

is DISMISSED WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Second

Amended Petition and dismissing this case with prejudice.

3. If Jean-Philippe appeals the denial of the Second Amended

Petition, the Court denies a certificate of appealability. Because 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 8th day of

January, 2024.

United States District Judge

39

Jax-10 12/22

C: Lesly Jean-Philippe, #J44119

Counsel of record