Brown v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KEITH BROWN,

Petitioner,

v. Case No. 3:20-cv-1188-TJC-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this action by

filing a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 1).

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

conviction for two counts of sexual battery on a child between the ages of 12 and

18 by a person in familial or custodial authority; two counts of lewd or lascivious

molestation; one count of lewd or lascivious exhibition; and one count of sale,

distribution, or showing obscene material to minors. See id. at 1. Petitioner is

serving a 100-year term of incarceration. Respondents filed a Response (Doc.

14; Response) with exhibits (Docs. 14-1 to 14-3; Ex.). Petitioner filed a Notice

indicating that he would not file a reply (Doc. 22). This case is ripe for review.1

II. Governing Legal Principles

A. Standard Under AEDPA

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

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

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

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘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)).

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

decision, if any, that adjudicated the petitioner’s claims 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 an opinion explaining its rationale for the state court’s

1 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

(11th Cir. 2016) (citing 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) (citation omitted). “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.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

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

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is

unaccompanied by an explanation,

the 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. But 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, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Exhaustion and 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 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); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

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,[2] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[3] supra, at 84–85, 97 S. Ct.

2497. A state court’s invocation of a procedural rule to

deny a prisoner’s claims precludes federal review of the

claims if, among other requisites, the state procedural

rule is a nonfederal ground adequate to support the

judgment and the rule is firmly established and

consistently followed. See, e.g., Walker v. Martin, 562

U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179 L.Ed.2d 62

(2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct. 612,

617–618, 175 L.Ed.2d 417 (2009). The doctrine barring

procedurally defaulted claims from being heard is not

without exceptions. A prisoner may obtain federal

review of a defaulted claim by showing cause for the

default and prejudice from a violation of federal law.

See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Even though 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). For a petitioner to establish cause and prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

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

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

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

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

477 U.S. at 488, 106 S. Ct. 2639).[4] 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).

Without 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

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

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

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). 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.” 466 U.S. at 697.

Further, “[t]he 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 (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 105. As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s

representation was ‘within the wide range of reasonable professional

assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th

Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is

combined with § 2254(d), the result is double deference to the state court ruling

on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans

v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc)

(Jordan, J., concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004).

III. Analysis

A. Ground One

Petitioner argues that his trial counsel was ineffective for failing to

investigate and present witnesses. Doc. 1 at 3. He contends the witnesses

“would have been able to impeach the victim on crucial points” such as the time

of one of the crimes. Id. at 3-4. He asserts that the state court erred by finding

he “could not show prejudice based on showing that one of the time frames of

the alleged abuse can be contradicted.” Id. at 4. He further argues that counsel’s

“investigation should have included both witnesses who would have testified

that the Petitioner was working during the 30 day time period of the Williams[5]

rule evidence, school records to show that Petitioner was not authorized to pick

her up from school, and also the DCF records to show that her brother

committed the crimes.” Id. Petitioner’s “theory is that if [he] could not have

committed one of the alleged crimes, then he did not commit the other crimes.”

Id.

5 Under the Williams rule, evidence of collateral crimes is admissible “[i]f found to be

relevant for any purpose save that of showing bad character or propensity.” Williams

v. State, 110 So. 2d 654, 662 (Fla. 1959).

Petitioner raised similar issues in grounds four, eight, and nine of his

postconviction motion filed pursuant to Florida Rule of Criminal Procedure

3.850. The state court held an evidentiary hearing on some of Petitioner’s

grounds before denying his motion. As to the claims raised in Ground One of

the Petition, the postconviction court reasoned as follows:

Ground Four

Defendant claims Defense Counsel was

ineffective for failing to adequately investigate and

prepare a defense before trial in order to effectively

cross-examine the State’s witnesses. Specifically,

Defendant alleges he was not authorized to pick the

victim up from school and the school office had records

to show that. He contends Defense Counsel should

have investigated this issue to contradict the victim’s

statement that Defendant had picked her up from

school thirty days in a row when the crime occurred.

Defendant avers this was exculpatory evidence.

First, the Court finds Defendant’s claim [that]

this was exculpatory evidence is meritless.

Exculpatory evidence is “[e]vidence tending to

establish a criminal defendant’s innocence.”

Exculpatory Evidence, Black’s Law Dictionary (10th

ed. 2014). Even if such contradiction existed in the

victim’s story, it would not have tended to establish

Defendant’s innocence.

Further, at trial, the victim did not testify that

Defendant picked her up from school thirty days in a

row; rather, she testified Defendant would pick her up

from the bus stop when she was in middle school.

Regardless, how the victim got home from school was

not a material aspect of the trial because there was no

testimony about the crimes occurring while the victim

was on her way home from school. As such, any

misstatement or contradiction regarding how the

victim got home from school was not so serious that

Defense Counsel’s failure to investigate and present

same constituted deficient performance or affected

the outcome of the trial.

Additionally, Defendant states, “she alleged

that the Defendant had picked her up from school 30

days in a row when the crime occurred.” The crimes

charged in Counts One and Two were alleged to have

occurred “on one or more occasion” over a six-year

period. Even if the victim’s statement regarding what

happened during a thirty-day period was incorrect,

given the span of time that the crimes occurred, there

is not a reasonable probability the outcome of the trial

would have been different if such misstatement was

highlighted on cross-examination in an attempt to

raise doubt about the credibility of the victim.

Accordingly, Ground Four is denied.

. . . .

Ground Eight

Defendant claims Defense Counsel was

ineffective for failing to require witness testimony

during the Williams rule hearing, and misleading

Defendant regarding same. Defendant asserts that

live testimony would have revealed [redacted] made

the same accusations against Defendant before, and

an investigation by DCF found the accusations had no

merit. He also opines that live testimony would have

revealed that [redacted] told DCF caseworkers that

[redacted] Gary, was the one who abused [redacted]

and that [redacted] said that Gary told her to lie and

tell [redacted] it was Defendant who had molested

her. Defendant states he suffered prejudice by

Defense Counsel never arguing that there was a DCF

report that stated Gary was the one who sexually

abused [redacted]. Defendant contends had Defense

Counsel given this information to the Court or

presented it at trial, the Court would not have allowed

the State to introduce Williams rule testimony

concerning Defendant’s actions against [redacted].

. . . .

With regard to Defendant Counsel’s failure to

address the DCF report, the Court finds as

follows . . . .

Though the DCF report mentions Gary,

[Defense Counsel] testified at the evidentiary hearing

that she and Defendant had concerns about the report

being more harmful than helpful for Defendant. As

found above in Ground Five, the Court finds [Defense

Counsel’s] testimony that Defendant had seen the

DCF report prior to the Williams rule hearing, and

that she and Defendant had discussed the report and

strategy, more credible th[a]n Defendant’s testimony

that he had never seen the report and was not aware

of the report until he got to prison. As further

addressed in Ground Five, [Defense Counsel] testified

that [redacted] never told [redacted] that Gary

abused her, but rather, [redacted] said it was

Defendant who had abused her. [Defense Counsel]

was concerned that the only evidence pointing to Gary

as the perpetrator came from Defendant. Based

thereon, [Defense Counsel] testified that their

strategy was to not bring up the DCF report at the

Williams rule hearing because the information from

[redacted] deposition was that Defendant provided

the information regarding Gary, created the

appearance that Defendant was trying to push blame

onto someone else. [Defense Counsel] also employed

this strategy because, during her research, she never

discovered that Gary was convicted of a crime against

[redacted], and there was concern about locating Gary

because they believed he may, in fact, be a State

witness.

Based on the report itself, as well as the

deposition testimony of [redacted], the Court finds

[Defense Counsel’s] strategy in not presenting the

DCF report to the Court at the Williams rule hearing

or to the jury at trial, was reasonable.

Ground Nine

. . . .

Second, in his Original Motion Defendant

alleged that Defense Counsel was ineffective for

failing to produce any inconsistencies in the

testimony of the State’s witnesses. Defendant was

granted leave to amend this ground to allege what

inconsistences Defense Counsel should have brought

out during cross-examination. In his Amended

Motion, Defendant states that the inconsistency

Defense Counsel failed to highlight is the fact it was

impossible for Defendant to have picked the victim up

from school for thirty days straight, as she alleged in

her initial police statement, in deposition, and at

trial, because Defendant worked mandatory swing

shifts that changed weekly during the period of the

alleged crimes, i.e. 1995-1996. Defendant asserts he

provided Defense Counsel with the names of two

employees who would have verified his work

schedule, and he avers Defense Counsel should have

questioned [redacted] and Detective Perez regarding

Defendant’s employment schedule. Though

Defendant refers to “the victim” throughout this

claim, it is apparent this claim pertains to the

testimony and statements of [redacted] who is not a

victim in the instant case, but rather, the individual

testifying regarding the Williams rule evidence

admitted at trial.

At trial, Defense Counsel moved for a

continuance in order to obtain Defendant’s

employment records. Defense Counsel explained that

she provided the depositions to Defendant “a week or

so ago” and asked Defendant to provide her with a

letter regarding any issues, but the witnesses who

could testify regarding Defendant’s employment

history were not brought to counsel’s attention until

trial. Defendant alleges he provided Defense Counsel

with the necessary information to contact former

employees and investigate an alibi, but the record

reflects the information was provided too late for

Defense Counsel to take appropriate action. Further,

the Court denied Defense Counsel’s motion for a

continuance to obtain such information. As such, the

record refutes Defendant’s claim that Defense

Counsel was deficient for failing to investigate and

call witnesses regarding Defendant’s employment

schedule.

Further, the Court inquired and Defendant

indicated he did not wish to present any witnesses or

evidence at trial. Hence, Defendant is not permitted

to use the postconviction process to go behind this

sworn representation made to the trial court. See

Kelley v. State, 109 So. 3d 811, 812-13 (Fla. 1st DCA

2013) (“[A] rule 3.850 motion cannot be used to go

behind representations the defendant made to the

trial court, and the court may summarily deny post-

conviction claims that are refuted by such

representations.”).

Assuming arguendo, Defendant’s claim was not

subject to denial based on the reasons stated above,

the Court further finds the following. Defendant’s

assertion that this evidence was exculpatory is

meritless. As stated previously, exculpatory evidence

is “[e]vidence tending to establish a criminal

defendant’s innocence.” Exculpatory Evidence,

Black’s Law Dictionary (10th ed. 2014). Evidence that

the Defendant was working at times [redacted]

claimed he abused her would not have tended to

establish Defendant’s innocence as to the crimes

committed against [redacted] which were charged in

the instant case.

Additionally, given the overwhelming evidence

establishing Defendant’s guilt as to the crimes

charged in the instant case, there is not a reasonable

probability the outcome of the proceeding would have

been different if Defense Counsel had investigated

Defendant’s employment schedule or questioned

witnesses regarding same. Based on the foregoing

reasons, Defendant’s claim that Defense Counsel was

ineffective for failing to present witnesses or to

question State witnesses regarding Defendant’s

employment schedule is denied.

Ex. C1 at 487-88, 502, 506-09 (internal record citations omitted and citations

modified). Petitioner appealed the denial of his Rule 3.850 motion. Petitioner

filed a pro se initial brief, Ex. C2, the state filed a response, Ex. C3, and

Petitioner filed a reply, Ex. C4. The First District Court of Appeal per curiam

affirmed the denial without issuing a written opinion. Ex. C5.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record, the Court finds that the state court’s adjudication of this

claim was neither contrary to, nor an unreasonable application of, clearly

established federal law. Nor was the state court’s adjudication based on an

unreasonable determination of the facts given the evidence presented in the

state court proceedings. As such, Ground One is denied.

B. Ground Two

Petitioner argues that the trial court violated his constitutional rights “by

impermissibly commenting on the evidence.” Doc. 1 at 6 (capitalization and

emphasis omitted). According to Petitioner, during the state’s closing argument,

“defense counsel objected to the prosecutor’s recitation of facts that were not

presented in evidence. In response, the trial court commented on what [s]he

believed the facts to be based on h[er] own recollection.” Id. Petitioner contends

that the trial court’s recitation was incorrect and thus prejudiced the jury. Id.

Respondents argue that this claim is unexhausted, because “Petitioner waived

this trial court error claim by failing to contemporaneously object to the trial

court’s comments during his trial.” Doc. 14 at 9. Respondents alternatively

argue that “the claim was ‘adjudicated on the merits’ by the 1st DCA” and this

Court should defer to that ruling. Id. at 30-31.

During the state’s closing argument, defense counsel objected, arguing

that what the prosecutor said was “not in evidence.” Ex. B4 at 573. The trial

judge overruled the objection, stating: “Actually I do believe I remember the

testimony, so respectfully overruled.” Id. Shortly thereafter, defense counsel

made another similar objection:

[Defense Counsel]: Objection, Your Honor, to

the statement that there were pictures of a child.

Those are facts not the [sic] evidence. There was not

testimony that there was photographs of a child on his

phone. At this time this was testified to that she was

18 at the time.

. . . .

THE COURT: From the Court’s independent

recollection from the testimony, I know that there

were - - Detective Perez testified that there were

photos on the phone. From my independent

recollection I do not - - I know she received a phone at

17. I do not know from my independent recollection

whether or not there was testimony in the record that

photos were from 18 forward.

[The State]: I can withdraw it and rephrase it[.]

THE COURT: Why don’t you do that. . . . And

that is simply from the Court’s independent

recollection.

Id. at 584-85.

On direct appeal, Petitioner argued that the trial court’s impermissible

comments on the evidence amounted to fundamental error. Ex. B5 at 29-31. The

state responded, arguing that the alleged error did not amount to fundamental

error as “[t]he comments complained of did not prejudice [Petitioner] or deprive

him of a fair trial.” Ex. B6 at 41. The First DCA per curiam affirmed Petitioner’s

convictions and sentences without issuing a written opinion. Ex. B7.

Reviewing the parties’ briefs on direct appeal reveals that Petitioner

raised this claim in terms of state law only. Thus, he failed to alert the state

court to the federal nature of the claim before this Court, rendering Ground Two

of the Petition unexhausted and procedurally barred. Petitioner has shown

neither cause nor prejudice to excuse the procedural bar, nor has he shown a

fundamental miscarriage of justice would result if the Court did not address

this claim on the merits. Thus, Ground Two is due to be denied.

Even assuming the federal nature of this claim is exhausted, the claim

has no merit. While a defendant has a “constitutional right to a fair trial by an

unbiased jury and an impartial judge,” the record here reflects that the trial

judge did not have any personal interest in the outcome of the trial or attempt

to sway the jury with these comments. Wellons v. Warden, Georgia Diagnostic

& Classification Prison, 695 F.3d 1202, 1211 (11th Cir. 2012). Moreover, the

jury was specifically instructed to “disregard anything [the judge] may have

said or done that made [them] think [the judge] preferred one verdict over

another.” Ex. B4 at 625. Even if the comments were improper, there was

sufficient evidence of Petitioner’s guilt to support the convictions.6 The judge’s

comments did not render Petitioner’s trial fundamentally unfair, or “so infect[]

the trial with unfairness as to make the resulting conviction a denial of due

process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Ground Two is due

to be denied.

6 At sentencing, the trial judge stated: “I sat here and I listened to what the Court

would construe as a sophisticated pattern of abuse.” Ex. B1 at 123.

C. Ground Three

Petitioner asserts that his trial counsel was ineffective for failing to object

to the prosecutor’s improper comments during opening statements and closing

arguments. Doc. 1 at 8. Petitioner points to the following specific comments that

he contends were objectionable:

 Keith Brown, the defendant, started a sexual

relationship with a female in 2003.

 There were no inconsistencies in the victim’s

testimony.

 And they are all of a child on this Defendant’s

phone. The victim was a child and this

Defendant had nude photographs of her saved in

his phone.

 [A]nd as he sits before you today, he is

absolutely guilty.

Id. at 9.

Petitioner raised this claim in his Rule 3.850 motion.7 The postconviction

court denied it:

Defendant claims Defense Counsel was

ineffective for failing to object to numerous improper

comments made by the prosecutor, and for not raising

a proper objection once she did object. Defendant

points to several comments in arguing this ground.

The Court addresses each one below.

7 In his Rule 3.850 motion, Petitioner challenged other statements made by the

prosecutor as well. This Court will only address the comments Petitioner challenges

in the Petition.

First, Defendant points to two comments made

during opening statements: (1) “Keith Brown, the

defendant, started a sexual relationship with a female

in 2003,” and (2) “[redacted] was [redacted] old,

[redacted] old when that Defendant, living with

[redacted], began to molest [redacted].” Defendant

argues that these statements were improper because

Defendant, the victim, and the victim’s mother did not

move in together until 2005. In fact, [redacted]

testified that she met Defendant in 1998, they started

dating a year to a year-and-a-half later, things became

serious and Defendant started coming around more

about a year after they started dating, and then

Defendant eventually moved in. The victim’s birthdate

is September 1, 1991, and [redacted] testified that

when the victim was around [redacted] old, Defendant

was responsible for taking care of the victim while

[redacted] was at work, and she would get home from

work around 12:30 when the victim was already

asleep.

The Court finds these statements were not

improper, and therefore, Defense Counsel was not

deficient for failing to object. See Ruiz v. State, 80 So.

3d 420, 421 (Fla. 4th DCA 2012) (finding “prosecutor’s

opening statement was not improper because it

provided a synopsis of what the witnesses would say”

(citing Conahan v. State, 844 So. 2d 629,643 (Fla.

2003))).

Next, Defendant raises issue with two closing

statements regarding Defendant’s guilt: (2) “ . . . and

as he sits before you today, he is absolutely guilty,” and

(2) “[s]o he no longer is sitting there an innocent man.

He sits there guilty of every single charge that has

been placed against him.”

To demonstrate prejudice based on counsel’s

failure to object to allegedly improper comments, the

prosecutor’s comments must constitute reversible

error. Taylor v. State, 120 So. 3d 540, 551 (Fla. 2013).

To obtain relief based upon improper prosecutorial

comments, the comments must,

either deprive the defendant of a fair and

impartial trial, materially contribute to

the conviction, be so harmful or

fundamentally tainted as to require a new

trial, or be so inflammatory that they

might have influenced the jury to reach a

more severe verdict than that it would

have otherwise.

Walls v. State, 926 So. 2d 1156, 1167 (Fla. 2006)

(quoting Spencer v. State, 645 So. 2d 377, 383 (Fla.

1994)).

The victim testified in detail regarding the

offenses Defendant was convicted of committing, and

[redacted], Terri Brooks, Lisa Perez, and Analissa

Harden provided testimony that supported the

victim’s account of the events that occurred.

Additionally, [redacted] and [redacted] provided

Williams rule testimony regarding prior actions by

Defendant against [redacted]. In light of the testimony

at trial establishing Defendant’s guilt, as well as the

Williams rule testimony, the Court finds even if the

State’s comments regarding Defendant’s guilt were

improper, Defendant cannot demonstrate he was

prejudiced by these two comments. See Walls, 926 So.

2d at 1167. Further, the Court finds the State’s

comments were brief and did not rise to the level of

fundamental error. See Simpson v. State, 3 So. 3d

1135, 1147 (Fla. 2009).

Defendant next highlights the prosecutor’s

comment that there were not inconsistencies in the

victim’s testimony. “[A]n attorney is allowed to

argue . . . credibility of witnesses or any other relevant

issue so long as the argument is based on the

evidence.” Whigham v. State, 97 So. 3d 274, 275 (Fla.

1st DCA 2012). At trial, the Defense focused on

attacking the victim’s credibility, arguing she had

motivation to fabricate the allegations. In reply, the

prosecutor argued in support of the victim’s credibility.

The prosecutor’s statement regarding the lack of

inconsistencies in the victim’s testimony was based on

the evidence and did not constitute improper

bolstering. Whigham, 97 So. 3d at 275-76 (finding the

prosecutor did not improperly vouch for the credibility

of the witness, but rather, “appropriately explained

[the witness’s] demeanor on the stand after

Appellant’s counsel in closing argument attacked her

credibility based on her demeanor and purported

evasiveness on cross-examination”); see also Jackson

v. State, 89 So. 3d 1011, 1018-19 (Fla. 4th DCA 2012)

(holding the prosecutor’s statements that the witness

testified openly, honestly, and truthfully, were not

improper where the witness’s credibility was “hotly

disputed” and “the prosecutor and defense counsel

offered detailed arguments supporting or challenging

[the witness’s] credibility”); Wade v. State, 41 So. 3d

857, 869 (Fla. 2010) (holding statements made by the

prosecutor to explain how all of the evidence presented

at trial, including testimony from law enforcement

officers, corroborated a state witness’s testimony, were

a fair reply to the defense’s argument that the witness

was not credible (declined to follow on other grounds

McCloud v. State, 208 So. 3d 668 (Fla. 2016))).

. . . .

The last statement Defendant challenges is,

“ . . . and they are all of a child on this defendant’s

phone. The victim was a child and this defendant had

nude photographs of her saved on his phone.”

Defendant contends the State made this argument

knowing the victim was 18 years or older in the photos,

and also the State had agreed that the pictures on the

cell phone were not going to be presented as evidence.

In his Original Motion, Defendant acknowledges

Defense Counsel objected to the prosecutor’s

characterization of the photos being of a “child,” but

asserts Defense Counsel made an improper objection.

Defendant does not state, however, what objection

Defense Counsel should have made. Regardless, after

Defense Counsel’s objection to the State’s

characterization of the photos being of a “child,” and

after the trial judge indicated she did not have an

“independent recollection whether or not there was

testimony in the record that photos were from 18

forward,” the state withdrew the comment and

rephrased it.

Further, the Court finds Defense Counsel was

not deficient for failing to object on the basis the cell

phone photos were not entered into evidence. The

prosecutor’s comment was supported by the victim’s

and Detective Perez’s testimony regarding the photos,

and, whether the photos themselves were entered into

evidence is of no moment. Further, the

characterization of the photos being of a “child” was in

fact supported by the victim’s testimony that she got a

cell phone when she was [redacted] old and sent photos

to Defendant when she was [redacted]. Based on the

foregoing, the Court finds Defense Counsel did not act

deficiently with regard to the prosecutor’s statement

about the photographs.

Ex. C1 at 494-99 (internal record citations omitted). Petitioner appealed the

denial of his Rule 3.850 motion. Petitioner filed a pro se initial brief, Ex. C2, the

state filed a response, Ex. C3, and Petitioner filed a reply, Ex. C4. The First

DCA per curiam affirmed the denial without issuing a written opinion. Ex. C5.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. “The statements

of a prosecutor will justify reversal of a conviction if they undermined the

fairness of the trial and contributed to a miscarriage of justice. Furthermore, a

prosecutor’s statements during closing argument require reversal only if the

comments are both improper and prejudicial to a substantial right of the

defendant.” United States v. Jacoby, 955 F.2d 1527, 1541 (11th Cir. 1992)

(internal quotations and citations omitted). Here, the jury was repeatedly

instructed that what the lawyers say is not evidence and they are required to

base their verdicts solely on the evidence presented during the trial. See Exs.

B3 at 314; B4 at 562, 620-24. While the prosecutor’s statement that Defendant

is “no longer. . . sitting there an innocent man” is likely improper, considering

the record, the prosecutor’s comments did not undermine the fairness of the

trial or contribute to a miscarriage of justice; thus, counsel was not ineffective

for failing to object.8

Upon thorough review of the record, the Court finds that the state court’s

adjudication of this claim was neither contrary to, nor an unreasonable

application of, clearly established federal law. Nor was the state court’s

adjudication based on an unreasonable determination of the facts given the

evidence presented in the state court proceedings. As such, Ground Three is

denied.

8 As noted by the postconviction court, defense counsel did object to the prosecutor’s

comment that Petitioner “had nude photographs” of a child saved on his phone, and

the prosecutor withdrew and rephrased the comment. Ex. B4 at 584-85.

Accordingly, it is

ORDERED:

1. The Petition (Doc. 1) is DENIED, and this case is DISMISSED

with prejudice.

2. If Petitioner appeals, 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.?

3. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 26% day of

January, 2024.

eo) Cmotha J. Corrigan

TIMOTHY J. CORRIGAN

United States District Judge

9 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, Petitioner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong,’ Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)), or 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)). Here, after consideration

of the record as a whole, the Court will deny a certificate of appealability.

26

JAX-3 1/21

c:

Keith Brown, #J02167

Counsel of Record