Carter v. Secretary, Department of Corrections (Hillsborough County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOHNNY CARTER,

Petitioner,

v. Case No. 8:21-cv-1570-WFJ-CPT

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

Johnny Carter, a Florida prisoner, timely filed a third amended petition for writ of

habeas corpus under 28 U.S.C. § 2254. (Doc. 18). Respondent filed a response opposing

the petition. (Doc. 27). Mr. Carter did not file a reply. Upon consideration, the petition is

DENIED.

I. Background

In January 2014, Daniel McCullough lived in Tampa, Florida, with his wife Danielle

Satterly, his two brothers, and his father. (Doc. 28-2, Ex. 3, at 23-24). At the time, Mr.

McCullough had known Mr. Carter for approximately five months. (Id. at 25). The two

were friends, and on several occasions Mr. Carter had come over to Mr. McCullough’s

house to play video games. (Id. at 26). Mr. McCullough owned five guns that he kept in

his bedroom: a Smith & Wesson .40 caliber handgun, a Mossberg 12-gauge shotgun, a

Ruger .22 caliber semi-automatic rifle, a Winchester .243 caliber sniper rifle, and a .22

caliber Marlin rifle. (Id. at 27, 37-43). Mr. McCullough had shown each gun to Mr. Carter

before the incident that led to the latter’s arrest. (Id. at 27).

Around 10:00 a.m. on January 29, 2014, Mr. Carter knocked on Mr. McCullough’s

front door. (Id. at 114). One of Mr. McCullough’s brothers answered. (Id.) Mr. Carter said

he was looking for Mr. McCullough. (Id.) The brother let him in and explained that Mr.

McCullough was “still sleeping.” (Id. at 114-15). Mr. Carter wrote an illegible note, left it

on the kitchen counter, and “said that he was going to talk to” Mr. McCullough. (Id. at 115-

17, 169).

Mr. Carter made his way to Mr. McCullough’s bedroom. (Id. at 28-29). He opened

the door and came upon Mr. McCullough and Ms. Satterly lying in bed together. (Id. at 28,

30). Mr. Carter asked Mr. McCullough to take him to a store to “get [] some nine-millimeter

bullets.” (Id. at 30). Mr. McCullough declined, explaining that he “had a toothache” and

was “not feeling good.” (Id.) Mr. Carter pulled out a .45 caliber handgun, pointed it at the

couple, and said, “I really hate to do this to you, but . . . . [a]in’t nobody been giving me

sh*t, so it’s time I take sh*t in my own hands and get what is mine.” (Id. at 31-32). Mr.

McCullough initially thought Mr. Carter was joking. (Id. at 35). But when Mr. Carter

pointed the gun directly at Ms. Satterly, Mr. McCullough realized he was serious. (Id. at

36).

Seeking to “get [Mr. Carter] out of [the] house,” Mr. McCullough said he knew of

“another house” to rob. (Id.) That tactic failed, and Mr. Carter asked Mr. McCullough,

“Where’s the .40 at?” (Id. at 37). Mr. Carter grabbed Mr. McCullough’s .40 caliber

handgun from “between [the] bed and the wall” and put it in his waistband. (Id. at 37-38).

As he continued to point the gun at the couple, Mr. Carter took three other firearms that

belonged to Mr. McCullough: the Mossberg shotgun, the Ruger rifle, and the Winchester

sniper rifle. (Id. at 35-42). Mr. Carter then asked for the Marlin rifle. (Id. at 43). Mr.

McCullough “put [his] arm out in front of” the rifle, prompting Mr. Carter to place his

handgun on Mr. McCullough’s forehead and “pull[] the trigger.” (Id. at 45). The gun

“misfired,” and Mr. McCullough heard a “[c]lick.” (Id. at 46). Mr. Carter “ejected the live

round that didn’t fire” and put “a fresh round in.” (Id. at 46-47). He then pointed the gun

at Mr. McCullough’s kneecap and said, “Do you want it in your kneecap or your elbow?”

(Id. at 47).

Next, Mr. Carter asked for “the car keys.” (Id. at 48). Ms. Satterly owned a 2001

Chevy Cavalier. (Id.) Mr. Carter took the keys from dresser; he also grabbed Mr.

McCullough and Ms. Satterly’s cell phones. (Id.) Mr. Carter then said, “Count down from

ten. If you move before ten seconds I will kill you. If you call the cops, I will personally

come back and kill you myself or I will send somebody over here to kill you.” (Id. at 49).

As he left the room, Mr. Carter grabbed a “handheld PlayStation.” (Id.) He exited the house

and drove away in the Chevy Cavalier. (Id. at 50-51).

Mr. Carter was arrested and ultimately charged with two counts of robbery with a

firearm and one count of grand theft of a motor vehicle. (Id., Ex. 2, at 93-97). Following a

jury trial, Mr. Carter was found guilty as charged. (Id. at 127-29). As part of its verdict, the

jury found that Mr. Carter “actually possessed a firearm during the commission” of the two

robbery offenses. (Id. at 127-28). The state trial court sentenced him to concurrent terms

of twenty-five years’ imprisonment for the robbery counts and five years’ imprisonment

for the grand theft count. (Id. at 136). The sentences for robbery included ten-year

mandatory minimums pursuant to Florida’s 10-20-Life law.1 (Id.) The state appellate court

per curiam affirmed the convictions and sentences. (Id., Ex. 7). Mr. Carter unsuccessfully

sought postconviction relief under Florida Rule of Criminal Procedure 3.850, (Doc. 28-3,

Ex. 18, at 245-70, 632-35), and the state appellate court per curiam affirmed the denial of

relief, (Doc. 28-3, Ex. 22). Mr. Carter also filed a petition alleging ineffective assistance of

appellate counsel, which was summarily denied. (Doc. 28-2, Exs. 10, 11, 12). This federal

habeas petition followed. (Docs. 1, 10, 13, 18).

II. Standards of Review

A. AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this

proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

can be granted only if a petitioner is in custody “in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal

habeas relief cannot be granted on a claim adjudicated on the merits in state court unless

the state court’s adjudication:

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

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

Court of the United States; or

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

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

1 “The 10-20-Life statute provides for a minimum mandatory sentence of ten years for possession of a

firearm during the commission of [a] robbery and a minimum mandatory sentence of twenty years for the

discharge of a firearm during the commission of [a] robbery.” Muldrow v. State, 842 So. 2d 240, 241 (Fla.

2d DCA 2003).

A decision is “contrary to” clearly established federal law “if the state court arrives

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

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

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves

an “unreasonable application” of clearly established federal law “if the state court identifies

the correct governing legal principle from [the Supreme] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Id.

AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.

685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s application

of clearly established federal law is objectively unreasonable, and . . . an unreasonable

application is different from an incorrect one.” Id. at 694; see also Harrington v. Richter,

562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court,

a state prisoner must show that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.”).

The state appellate court affirmed Mr. Carter’s convictions and sentences, as well

as the denial of postconviction relief, without discussion. These decisions warrant

deference under § 2254(d)(1) because “the summary nature of a state court’s decision does

not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.

2002). When a state appellate court issues a silent affirmance, “the federal court should

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

provide a relevant rationale” and “presume that the unexplained decision adopted the same

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

B. Exhaustion of State Remedies; Procedural Default

A federal habeas petitioner must exhaust his claims in state court before presenting

them in his federal habeas petition. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526

U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act

on his claims before he presents those claims to a federal court in a habeas petition.”). The

exhaustion requirement is satisfied if the petitioner fairly presents his claim in each

appropriate state court and alerts that court to the federal nature of the claim. Picard v.

Connor, 404 U.S. 270, 275-76 (1971).

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

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

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

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

Cir. 2001). A fundamental miscarriage of justice occurs in an extraordinary case where a

constitutional violation has probably resulted in the conviction of someone who is actually

innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson v. Campbell, 353 F.3d 880,

892 (11th Cir. 2003). To establish cause for a procedural default, a petitioner “must

demonstrate that some objective factor external to the defense impeded the effort to raise

the claim properly in state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999).

A petitioner demonstrates prejudice by showing that “there is at least a reasonable

probability that the result of the proceeding would have been different” absent the

constitutional violation. Henderson, 353 F.3d at 892.

C. Ineffective Assistance of Counsel

Mr. Carter alleges ineffective assistance of trial counsel. Ineffective-assistance-of-

counsel claims are analyzed under the test established in Strickland v. Washington, 466

U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and

resulting prejudice. Id. at 687. Deficient performance is established if, “in light of all the

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

professionally competent assistance.” Id. at 690. However, “counsel is strongly presumed

to have rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Id.

Mr. Carter must show that counsel’s alleged error prejudiced the defense because

“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside

the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at

691. To demonstrate prejudice, Mr. Carter must show “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal

habeas review because “[t]he standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at

105 (internal quotation and citations omitted); see also Pooler v. Sec’y, Dep’t of Corr., 702

F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel

claim—which is governed by the deferential Strickland test—through the lens of AEDPA

deference, the resulting standard of review is doubly deferential.”). “The question [on

federal habeas review of an ineffective-assistance claim] ‘is not whether a federal court

believes the state court’s determination’ under the Strickland standard ‘was incorrect but

whether that determination was unreasonable—a substantially higher threshold.’” Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473

(2007)).

III. Discussion

A. Ground One, Sub-Claim A—Failure to Challenge “Defective Charging

Document”

Mr. Carter contends that trial counsel was ineffective for failing to raise several

challenges to the superseding information in his case. (Doc. 18 at 6). According to Mr.

Carter, counsel should have argued that the information was defective because it (1) failed

to allege that he “discharge[d] a firearm” for purposes of the 10-20-Life enhancement; (2)

did not “include [his] race, gender, [] date of birth,” or the “time and place where the alleged

offense was committed”; (3) contained an improper “filing date”; (4) included “altered

statutes and elements of robbery, theft, and possession or use of weapon”; (5) contained an

allegedly “fraudulent statement by ASA Joel Elsea that [he] obtained [a] sworn statement

by [a] material witness”; and (6) failed to “state that the prosecution [was] being brought

by the [State Attorney] through the designated ASA.” (Doc. 18 at 6).

Respondent contends that this claim is procedurally defaulted. (Doc. 27 at 30). The

Court need not reach that issue because, even under de novo review, Mr. Carter’s

ineffective-assistance claim fails on the merits. See Dallas v. Warden, 964 F.3d 1285, 1307

(11th Cir. 2020) (“[A] federal court may skip over the procedural default analysis if a claim

would fail on the merits in any event.”). It is well established that “[a] lawyer cannot be

deficient for failing to raise a meritless claim.” Freeman v. Atty. Gen., 536 F.3d 1225, 1233

(11th Cir. 2008). Mr. Carter’s challenges to the superseding information uniformly lack

merit. Thus, counsel was not ineffective for failing to raise them.

First, Mr. Carter complains that the superseding information failed to allege that he

“discharge[d] a firearm” for purposes of the 10-20-Life enhancement. (Doc. 18 at 6). As

noted above, “[t]he 10-20-Life statute provides for a minimum mandatory sentence of ten

years for possession of a firearm during the commission of [a] robbery and a minimum

mandatory sentence of twenty years for the discharge of a firearm during the commission

of [a] robbery.” Muldrow, 842 So. 2d at 241. “To pursue an enhanced mandatory sentence

as the 10-20-Life statute [prescribes], the state must allege the grounds for enhancement in

the charging document.” Bienaime v. State, 213 So. 3d 927, 929 (Fla. 4th DCA 2017).

Here, the prosecution did not seek to enhance Mr. Carter’s sentence on the ground

that he discharged a firearm. Instead, the superseding information alleged that Mr. Carter

“actually possessed a firearm” “during the commission” of the robbery. (Doc. 28-2, Ex. 2,

at 93-94 (emphasis added)). As part of its verdict, the jury found that Mr. Carter “actually

possessed a firearm” when he robbed the victims. (Id., Ex. 3, at 127-28). Based on that

finding, Mr. Carter received a ten-year mandatory minimum sentence for each robbery

count. (Id., Ex. 2, at 136). Thus, the information properly “allege[d] the grounds for [the]

enhancement” that was imposed in this case—that is, the ten-year mandatory minimum for

possessing a firearm during a robbery. Bienaime, 213 So. 3d at 929. Because the

prosecution never sought to enhance Mr. Carter’s sentence based on the discharge of a

firearm, it is irrelevant that the information failed to allege that he fired the gun.

Second, Mr. Carter argues that the information failed to “include [his] race, gender,

[] date of birth,” or the “time and place where the alleged offense was committed.” (Doc.

18 at 6). Mr. Carter is mistaken. The information set forth his race, gender, date of birth,

and other demographic data. (Doc. 28-2, Ex. 2, at 96). And even if it had omitted that

information, Florida Rule of Criminal Procedure 3.140(c)(4) provides that the “[f]ailure to

include [such] facts shall not invalidate an otherwise sufficient indictment or information.”

As for the time and place of the offenses, the information alleged that each offense was

committed on January 29, 2014, in Hillsborough County, Florida. (Doc. 28-2, Ex. 2, at 93-

94). Nothing more was required to comply with Florida law. See Bettey v. State, 244 So.

3d 364, 367 (Fla. 4th DCA 2018) (“[T]he State may charge a date range, and need not

specify exact dates if they are not known.”); State v. Barnett, 344 So. 2d 863, 865 (Fla. 2d

DCA 1977) (“[I]t is essential for an indictment to state the county within which the offense

was committed.”).

Third, Mr. Carter states that the information “already contain[ed] a filing date which

shows the delay is preferable to error.” (Doc. 18 at 6). Mr. Carter does not elaborate on this

statement, and it is unclear what he means by it. Under Florida law, an information “shall

bear the date (day, month, year) that it is filed in each court in which it is so filed.” Fla. R.

Crim. P. 3.140(c)(3). The superseding information complied with this rule. It bore a stamp

indicating that it was filed on June 30, 2016, and it contained an electronic filing stamp

from the clerk of court noting that it was “E-Filed” on the same day. (Doc. 28-2, Ex. 2, at

93). Thus, there was no basis for counsel to object to the “filing date” of the information.

Fourth, Mr. Carter argues that the information included “altered statutes and

elements of robbery, theft, and possession or use of weapon.” (Doc. 18 at 6). Again, it is

not clear what Mr. Carter means by this statement. The information did not “alter[]” any

of the statutes it invoked. And while the robbery counts did include citations to the theft

statute, (Doc. 28-2, Ex. 2, at 93), there was nothing improper about that. “Theft is a

permissive lesser included offense of robbery with a firearm or deadly weapon.” Ingram v.

State, 928 So. 2d 1262, 1263 (Fla. 4th DCA 2006). The jury in Mr. Carter’s case was

instructed on the lesser included offense of theft. (Doc. 28-2, Ex. 2, at 107). That instruction

could not have been given unless the “information [] allege[d] all the statutory elements of

the permissive lesser included offense.” Anderson v. State, 291 So. 3d 531, 534 (Fla. 2020).

Thus, the prosecution properly cited the theft statute as part of the robbery counts. As for

the references to possession of a firearm, the prosecution was required to allege those facts

in order to seek the 10-20-Life enhancement. See Davis v. State, 884 So. 2d 1058, 1060

(Fla. 2d DCA 2004) (“[T]he minimum terms mandated by the ‘10-20-Life’ statute . . .

cannot be legally imposed unless the statutory elements are precisely charged in the

information.”).

Fifth, Mr. Carter claims that the information contained a “fraudulent statement by

ASA Joel Elsea that [he] obtained [a] sworn statement by [a] material witness.” (Doc. 18

at 6). Under Florida law, “[a]n information charging the commission of a felony shall be

signed by the state attorney, or a designated assistant state attorney, under oath . . .

certifying that he or she has received testimony under oath from the material witness or

witnesses for the offense.” Fla. R. Crim. P. 3.140(g). The information contained the

required certification, (Doc. 28-2, Ex. 2, at 95), and Mr. Carter provides no evidence that

it was “fraudulent.” To the contrary, the record reflects that both victims provided sworn

statements to law enforcement before Mr. Carter was charged. (Doc. 28-3, Ex. 18, at 55-

56). Thus, there is no basis to conclude that the certification was defective. See Russell v.

Fla. Dep’t of Corr., No. 3:13-cv-519-LAC-EMT, 2015 WL 2338622, at *43 (N.D. Fla.

May 13, 2015) (“Florida courts have held that an assistant state attorney who signs an

information need not personally administer an oath to, personally question, or see and hear

the testimony of the material witness or witnesses upon which charges are based. The

testimony of a material witness may be sworn to before anyone authorized to administer

an oath, and then transmitted to the state. The assistant state attorney can then properly

certify that he has received testimony under oath from the material witness.”).

Sixth and finally, Mr. Carter maintains that the information was defective because

it failed to “state that the prosecution is being brought by the [state attorney] through the

designated ASA.” (Doc. 18 at 6). As just noted, Florida law requires that “[a]n information

charging the commission of a felony [] be signed by the state attorney, or a designated

assistant state attorney.” Fla. R. Crim. P. 3.140(g). In this case, the information was signed

by Mr. Elsea, an assistant state attorney. (Doc. 28-2, Ex. 2, at 95). Mr. Carter cites no

authority—and this Court cannot locate any—holding that an information must expressly

state that the assistant state attorney was “designated” by the state attorney to sign the

charging document.

In short, Mr. Carter’s objections to the superseding information are, without

exception, frivolous. “Failing to make a meritless objection does not constitute deficient

performance” under Strickland. Denson v. United States, 804 F.3d 1339, 1342 (11th Cir.

2015). Accordingly, counsel was not ineffective for failing to raise Mr. Carter’s proposed

arguments.

Moreover, even if Mr. Carter could show deficient performance, his ineffective-

assistance claim would still fail for lack of prejudice. To show prejudice under Strickland,

Mr. Carter must “establish a reasonable probability that, but for counsel’s [failure to object

to the superseding information], the outcome at trial would have been different.” Reed v.

Sec’y, Fla. Dep’t of Corr., 767 F.3d 1252, 1261 (11th Cir. 2014). Florida law permits the

amendment of an information “at any time prior to trial because of formal defects.” Fla. R.

Crim. P. 3.140(j). Thus, even if counsel had successfully objected to the information on

the grounds urged by Mr. Carter, the prosecution could have amended the charging

document to remedy the alleged defects. As a result, Mr. Carter cannot establish that he

was prejudiced by counsel’s conduct. See Lawson v. Sec’y DOC, No. 2:16-cv-85-JES-

MRM, 2017 WL 4271664, at *6 (M.D. Fla. Sept. 26, 2017) (“[Petitioner] has not explained

what would have prevented the state from simply filing an amended information had

Counsel objected; accordingly, he has not demonstrated Strickland prejudice.”), aff’d sub

nom. Lawson v. Sec’y, Dep’t of Corr., 785 F. App’x 722 (11th Cir. 2019).

For all these reasons, Ground One, Sub-Claim A is denied.

B. Ground One, Sub-Claim B—Failure to Raise Alleged Speedy Trial

Violation

Mr. Carter argues that trial counsel was ineffective for failing to “move for discharge

on speedy trial grounds.” (Doc. 18 at 6). Mr. Carter elaborated on this claim in his Rule

3.850 motion. There, he alleged that his right to a “speedy trial set forth in Fla. R. Crim. P.

3.191(a)(1)” was violated because of counsel’s “unprofessional” conduct, and that he

“never waived his right to speedy trial.” (Doc. 28-3, Ex. 18, at 206). This claim lacks merit.

Florida law provides that a defendant “shall be brought to trial within . . . 175 days

of arrest if the crime charged is a felony.” Fla. R. Crim. P. 3.191(a). “This right is not self-

executing and requires a defendant to take affirmative action to avail himself of the

remedies provided under the statute.” Dillard v. Sec’y, DOC, 440 F. App’x 817, 819 (11th

Cir. 2011). In particular, “after the 175-day speedy trial period expires, a defendant may

file a ‘Notice of Expiration of Speedy Trial Time,’ which triggers a 10-day ‘recapture

period.’” Id. (citing Fla. R. Crim. P. 3.191(p)(2)). If no exceptions exist “which would

prevent speedy trial,” “the trial court must order that the defendant be brought to trial within

the ten-day recapture period.” Id. at 820 (citing Fla. R. Crim. P. 3.191(p)(3)).

The state postconviction court rejected Mr. Carter’s ineffective-assistance claim,

finding that counsel “had no legal basis to move for discharge on speedy trial grounds.”

(Doc. 28-3, Ex. 18, at 255). The court recounted that Mr. Carter “was arrested on January

29, 2014, and charged by Felony Information on February 18, 2014.” (Id.) On May 22,

2014—before the expiration of the 175-day period—Mr. Carter’s counsel “waived speedy

trial.” (Id.; see also Doc. 28-2, Ex. 1, at 13). Then, on July 2, 2014, counsel “filed a motion

to suppress” Mr. Carter’s confession, “which was heard on August 12, 2014.” (Doc. 28-3,

Ex. 18, at 255). The trial court granted the motion, ruling that law enforcement violated

Mr. Carter’s rights by continuing the interrogation despite his request for an attorney. (Doc.

28-2, Ex. 2, at 87). As it was entitled to do under Florida law, see Fla. R. Crim. P.

9.140(c)(1)(B), the prosecution pursued an interlocutory appeal of the suppression order,

(Doc. 28-2, Ex. 2, at 58). On August 25, 2014, the trial court stayed Mr. Carter’s case and

ordered that he “be brought to trial within 90 days of the date of receipt” of the appellate

mandate. (Doc. 28-2, Ex. 2, at 67). The state appellate court “affirmed the trial court’s order

on March 11, 2016,” “the mandate issued March 29, 2016,” and the trial court received the

mandate two days later. (Doc. 28-3, Ex. 18, at 255; see also Doc. 28-2, Ex. 2, at 91). Trial

began on July 5, 2016—96 days after receipt of the mandate. (Doc. 28-2, Ex. 2, at 98).

Based on this procedural history, the state postconviction court found that the

“record refute[d] a speedy trial violation.” (Doc. 28-3, Ex. 18, at 255). As the court noted,

Mr. Carter’s counsel waived speedy trial on May 22, 2014, well before the 175-day period

expired. That waiver was binding on Mr. Carter. See Dillard, 440 F. App’x at 820 (“[A]

waiver of speedy trial by counsel is binding on the defendant, even though done without

consulting him and even against the client’s wishes.”). The prosecution subsequently

pursued an interlocutory appeal of the order suppressing Mr. Carter’s confession. The trial

court stayed the case, extended the speedy trial period, and ordered that Mr. Carter “be

brought to trial within 90 days of the date of receipt” of the appellate mandate. (Doc. 28-2,

Ex. 2, at 67; see also Fla. R. Crim. P. 3.191(i)(4) (permitting trial court to extend speedy

trial period by “written or recorded order for a period of reasonable and necessary delay

resulting from,” among other proceedings, “appeals by the state”)). Following the State’s

unsuccessful appeal, Mr. Carter was brought to trial within the 10-day “recapture period

provided for in Florida Rule of Criminal Procedure 3.191(p)(3).” (Doc. 28-3, Ex. 18, at

255). Thus, as the state postconviction court explained, counsel “had no legal basis to move

for discharge on speedy trial grounds with regard to the proceedings following the trial

court’s order granting [Mr. Carter’s] motion to suppress.” (Id.)

The rejection of this claim was reasonable. “[A]lthough the issue of ineffective

assistance . . . is one of constitutional dimension,” a court “must defer to the state’s

construction of its own law when the validity of the [ineffective-assistance] claim . . . turns

on state law.” Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017). Here, the state

court found that any speedy trial challenge would have been meritless under Florida law.

(Doc. 28-3, Ex. 18, at 255). Thus, the state court “already has told us how the issues would

have been resolved under Florida state law had [counsel] done what [Mr. Carter] argues

[s]he should have done.” Herring v. Sec’y. Dep’t of Corr., 397 F.3d 1338, 1354-55 (11th

Cir. 2005). This Court is bound to defer to that determination. See Stevens v. McNeil, No.

5:07-cv-199-RS-GRJ, 2010 WL 4595815, at *5-6 (N.D. Fla. Sept. 20, 2010) (“[T]he state

court’s determination that Petitioner’s rights under the state speedy trial rule were not

violated must be accorded deference.”), adopted by 2010 WL 4595807 (N.D. Fla. Nov. 5,

2010).

Deference aside, Mr. Carter fails to show that the state postconviction court

unreasonably applied Florida or federal law in rejecting his Strickland claim. See Anderson

v. Sec’y, Dep’t of Corr., No. 8:09-cv-2083-EAK-EAJ, 2010 WL 4259448, at *15 (M.D.

Fla. Oct. 25, 2010) (“Pursuant to the recapture feature of Florida’s speedy trial rule,

[Petitioner] could have been tried within the window period under state law. He does not

demonstrate otherwise. Accordingly, it is objectively reasonable to conclude there was no

reasonable probability of [Petitioner’s] discharge under the state’s speedy trial provisions

had his counsel performed as now proposed.”). Thus, the state postconviction court

reasonably concluded that counsel was not deficient for failing to seek a speedy trial

discharge under Florida law.

Mr. Carter’s petition could be liberally construed to raise a separate, but related,

claim—namely, that counsel was ineffective for failing to argue that Mr. Carter’s right to

a speedy trial under the Sixth Amendment was violated. (Doc. 18 at 6). Even on de novo

review, any such claim would be meritless. “To determine whether the government has

violated the right to a speedy trial under the Sixth Amendment, a [trial] court considers

four factors: (1) ‘length of delay’; (2) ‘the reason for the delay’; (3) ‘the defendant’s

assertion of his right’; and (4) ‘prejudice to the defendant.’” United States v. Knight, 562

F.3d 1314, 1323 (11th Cir. 2009) (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)).

While each factor is relevant, “[t]he flag all litigants seek to capture is the second factor,

the reason for delay.” United States v. Loud Hawk, 474 U.S. 302, 315 (1986).

Here, Mr. Carter was arrested in January 2014 and tried in July 2016. The

approximately 30-month delay in this case “clearly satisfies the threshold inquiry of

presumptive prejudice.” United States v. Villarreal, 613 F.3d 1344, 1350-51 (11th Cir.

2010); see also United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006) (“Delays

exceeding one year are generally found to be presumptively prejudicial.”). Thus, the first

factor weighs against the prosecution. But the remaining factors weigh against Mr. Carter.

The bulk of the delay was caused by litigation over Mr. Carter’s motion to suppress,

including the State’s unsuccessful appeal of the order granting the motion. Mr. Carter

moved to suppress his confession in July 2014, the trial court granted the motion in August

2014, and the appellate mandate issued in March 2016. “An interlocutory appeal by the

government is generally a valid reason that justifies an appropriate delay.” United States v.

Herman, 576 F.2d 1139, 1146 (5th Cir. 1978). That is especially the case where, as here,

there is no indication that “the government act[ed] arbitrarily, negligently, or in bad faith”

when it pursued the appeal. Id. Accordingly, the second factor weighs against Mr. Carter.

See Loud Hawk, 474 U.S. at 315 (“Given the important public interests in appellate review

. . . it hardly need be said that an interlocutory appeal by the Government ordinarily is a

valid reason that justifies delay.”).

The third and fourth factors also weigh against Mr. Carter. As noted above, counsel

waived speedy trial, and there is no indication that Mr. Carter ever asserted his speedy trial

rights before the trial court. See Barker, 407 U.S. at 532 (“[F]ailure to assert the right will

make it difficult for a defendant to prove that he was denied a speedy trial.”). Finally,

because the first three factors do not “uniformly weigh heavily against the government,”

Mr. Carter must show “actual prejudice” from the delay. United States v. Dunn, 345 F.3d

1285, 1296 (11th Cir. 2003). He does not even attempt to make such a showing, and there

is no evidence suggesting that he was prejudiced by the delay. Accordingly, because any

speedy trial claim under the federal constitution would have lacked merit, counsel was not

deficient for failing to pursue it. See Freeman, 536 F.3d at 1233 (“A lawyer cannot be

deficient for failing to raise a meritless claim.”).

Ground One, Sub-Claim B is denied.

C. Ground One, Sub-Claim C—Failure to Argue Double Jeopardy

Mr. Carter contends that trial counsel was ineffective for failing “to preserve the

issue of double jeopardy.” (Doc. 18 at 6). In his Rule 3.850 motion, Mr. Carter argued that

his right against double jeopardy was violated because he was charged with two counts of

robbery with a firearm based on a single incident. (Doc. 28-3, Ex. 18, at 239). He also cited

a portion of the trial transcript in which, according to him, “the judge asked is there

anything different in the two robber[ies], and defense counsel stated ‘No.’ But did not

preserve the issue.” (Id.)

The state postconviction court rejected this claim on the ground that “there was no

double jeopardy issue to which counsel could have objected.” (Id. at 267). The court noted

that the superseding information “charged [Mr. Carter] with two counts of robbery for two

separate victims.” (Id.) The court also explained that “[t]he portion of the trial transcript to

which [Mr. Carter] refer[red] took place during the charging conference, when the trial

judge inquired whether the parties wanted the judge to read the elements of robbery once

or twice in light of the two counts of robbery.” (Id.) “After it was determined the property

listed in each count was different, the [trial] court stated it would read separately the

elements for each count.” (Id. at 268). At that point, the trial court asked “whether there

was anything different in the robbery ‘instructions after the elements,’ which [was] the

transcript portion [Mr. Carter] attempt[ed] to cite to in his amended motion.” (Id.) The state

postconviction court noted that Mr. Carter failed to “quote the entire exchange,” which

read as follows:

THE COURT: Is there anything different in the two robbery—

DEFENSE COUNSEL: No.

THE COURT: —instructions after the elements?

THE STATE: Not that—I don’t see any, no.

(Id.; see also Doc. 28-2, Ex. 3, at 154). The state postconviction court found that “this

exchange d[id] not refer to any issue involving double jeopardy and d[id] not in any way

implicate a double jeopardy violation.” (Doc. 28-3, Ex. 18, at 268). Accordingly, the court

held that the “record refute[d] [Mr. Carter’s] allegations that counsel was deficient for

failing to preserve a double jeopardy violation.” (Id.)

The rejection of this claim was reasonable. The Double Jeopardy Clause

“guarantees against a second prosecution for the same offense after acquittal, a second

prosecution for the same offense after conviction, and multiple punishments for the same

offense.” United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009). Mr. Carter appears

to contend that he was punished twice for the same offense because he was convicted of

two counts of robbery based on a single incident. But “two robberies of different people at

the same time are two separate offenses calling for two judgments and two sentences.”

Hillman v. State, 410 So. 2d 180, 181 (Fla. 2d DCA 1982). During the incident in question,

Mr. Carter robbed two people—Mr. McCullough and Ms. Satterly. And he stole property

belonging to each of them—guns, a cellphone, and a handheld PlayStation from Mr.

McCullough; car keys and a cellphone from Ms. Satterly. Thus, two robberies were

committed, and Mr. Carter’s convictions did not violate double jeopardy.2 See Decastro v.

State, 708 So. 2d 635, 635 (Fla. 5th DCA 1998) (holding that “[t]wo robberies were

committed” where defendant “held a handgun on each of the victims and took beer, which

one victim had placed on the counter, and money from the other victim which had been

revealed by the victim opening the cash register”).

For these reasons, trial counsel was not deficient for failing to raise Mr. Carter’s

meritless double jeopardy argument. See Denson, 804 F.3d at 1342 (“Failing to make a

meritless objection does not constitute deficient performance.”). Indeed, Mr. Carter’s

appellate counsel raised the same issue on direct appeal, and the state appellate court

affirmed the convictions without a written opinion. (Doc. 28-2, Exs. 5, 7). Ground One,

Sub-Claim C is denied.

D. Ground One, Sub-Claim D—Miscellaneous Arguments

In the remainder of Ground One, Mr. Carter advances several additional arguments

about his criminal case. None have merit. First, Mr. Carter alleges that, three months after

the incident, one of the victims—Mr. McCullough—was charged with “a felony for

carrying [a] concealed firearm.” (Doc. 18 at 7). From this, Mr. Carter apparently infers that

Mr. McCullough “didn’t own any firearms” at the time of the robbery. (Id.) The inference

is faulty. At the time of Mr. Carter’s offense, Florida law granted “the statutory right to

own, possess, and lawfully use weapons, including firearms, at a person’s home or place

2 In addition, the state postconviction court correctly found that the portion of the trial transcript cited by

Mr. Carter did not support his claim of a double jeopardy violation.

of business without the restrictions against the open carrying of weapons or firearms . . . or

the requirements of a concealed carry license.” Burns v. State, 361 So. 3d 372, 377 (Fla.

4th DCA 2023). Thus, even if Mr. McCullough lacked a concealed carry permit at the time

of the robbery, it does not follow that he did not lawfully own the firearms he kept in his

house.

Second, Mr. Carter contends that the “testimony of newly discovered witnesses

Matthew McCullough, [Deputy] Robert T. Wilfong,” Deputy John K. King, and “Joel

Elsea would have been helpful in exposing the fraud and/or falsifying document in the

[criminal report affidavit] and the defective charging document.” (Doc. 18 at 7). These

vague and unsupported allegations are insufficient to warrant habeas relief. See Tejada v.

Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (explaining that a petitioner is not entitled

to federal habeas relief “when his claims are merely conclusory allegations unsupported by

specifics or contentions that in the face of the record are wholly incredible”). Mr. Carter

offers no specifics about what these witnesses would have said had they been called to

testify. Nor does he explain how their testimony would have revealed any “fraud” or

falsification of documents.

Third, Mr. Carter claims that statements by Matthew McCullough—one of Mr.

McCullough’s brothers—were “withheld” at trial. (Doc. 18 at 7). Matthew McCullough

was asleep during the robbery, but he woke up right after Mr. Carter left, called 911, and

handed the phone to Ms. Satterly. (Doc. 28-2, Ex. 3, at 50, 79, 97-98, 128). After the 911

call was played at trial, the prosecutor noted that he had “forgot[ten] to mention there was

some redaction from the beginning of the” call. (Id. at 106). The prosecutor explained that

the operator “seem[ed] to know” Mr. Carter’s name during the portion of the call that was

played to the jury. (Id.) Mr. Carter’s counsel said that she had “listened to the whole call”

and did not believe it necessary to give the jury an instruction about the redaction. (Id.) The

trial court agreed and did not provide an instruction. (Id.) The record does not contain the

full transcript of the 911 call. (Doc. 28-2; Doc. 28-3).

In his petition, Mr. Carter complains that Matthew McCullough’s statements at the

beginning of the 911 call were redacted from the recording played to the jury. (Doc. 18 at

7). But he offers no information about what Matthew McCullough said during the call, and

he fails to explain how those statements would have assisted his defense. Thus, Mr. Carter’s

“[s]peculation” about the impact of the redaction “is insufficient to carry [his] burden [as]

a habeas corpus petitioner.” Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir. 2002). And

to the extent the petition could be liberally construed as faulting Mr. Carter’s counsel for

neglecting to challenge the redaction, Mr. Carter fails to establish either deficient

performance or prejudice.

Fourth, Mr. Carter appears to complain that Deputy Wilfong signed the criminal

report affidavit but “was not present for trial.” (Doc. 18 at 7). Mr. Carter does not cite—

and this Court cannot locate—any authority requiring a law enforcement officer to appear

or testify at trial simply because he was involved in an investigation. Regardless, the

affidavit in question merely recounted statements made by Mr. McCullough and Ms.

Satterly—both of whom testified at trial. (Doc. 28-2, Ex. 2, at 20; id., Ex. 3, at 23-111).

Fifth and finally, Mr. Carter repeats his assertion that “ASA Joel Elsea violated [the

Fifth and Fourteenth Amendments] when [he] failed to obtain sworn testimony from a

material witness before filing criminal charges.” (Doc. 18 at 7-8). As explained above in

connection with Ground One, Sub-Claim A, these assertions are insufficient to entitle Mr.

Carter to federal habeas relief.

Ground One, Sub-Claim D is denied.

E. Ground Two—Alleged Fourth Amendment Violation

Mr. Carter argues that Deputy Wilfong violated his Fourth Amendment rights by

“making a sworn statement under oath based upon (hearsay)” to Deputy King, who

subsequently used the statement to obtain “probable cause” to arrest him. (Doc. 18 at 10).

As noted above, Deputy Wilfong prepared the narrative portion of the criminal report

affidavit. (Doc. 28-2, Ex. 2, at 20). Based on interviews with the two victims, (Doc. 28-3,

Ex. 18, at 55), Deputy Wilfong reported that Mr. Carter entered the house, pointed a gun

at the victims, and “demanded the victim[s’] two phones[,] car keys, and four firearms,”

(Doc. 28-2, Ex. 2, at 20). Deputy Wilfong noted that Mr. Carter subsequently “fled the

residence” with the items and drove off in Ms. Satterly’s car. (Doc. 28-2, Ex. 2, at 20). He

also stated that “[b]oth victims kn[e]w [Mr. Carter] personally and identified him via

mugshot . . . as the person who committed the offense.” (Id.)

Mr. Carter appears to contend that the affidavit violated the Fourth Amendment

because Deputy Wilfong based the narrative portion on “hearsay” statements from the

victims. (Doc. 18 at 10). This argument is meritless.3 “It is well established that police

3 Because this claim fails on the merits, the Court need not address Respondent’s argument that it is

procedurally defaulted.

officers may generally rely on eyewitness accounts and victim statements to establish

probable cause.” Bright v. Thomas, 754 F. App’x 783, 787 (11th Cir. 2018) (collecting

cases); see also Foreman v. City of Port St. Lucie, 294 F. App’x 554, 557 (11th Cir. 2008)

(“Probable cause for an arrest exists when an eyewitness reports witnessing a crime to

police.”). Here, the two victims provided Deputy Wilfong with “eyewitness accounts” of

Mr. Carter’s crimes. Bright, 754 F. App’x at 787. Those statements were plainly sufficient

to “cause a person of reasonable caution to believe that [multiple] criminal offense[s] ha[d]

been . . . committed” by Mr. Carter. Brown v. City of Huntsville, Ala., 608 F.3d 724, 734

(11th Cir. 2010). Moreover, “[t]o the extent [Mr. Carter] claims that his arrest could not be

properly based upon statements of other persons, his claim is without merit.” Thomas v.

Tucker, No. 5:11-cv-332-MMP-EMT, 2012 WL 4742804, at *8 (N.D. Fla. Aug. 10, 2012),

adopted by 2012 WL 4760870 (N.D. Fla. Oct. 3, 2012); see also Favre v. Henderson, 464

F.2d 359, 367 n.16 (5th Cir. 1972) (“Hearsay may, and frequently does, establish probable

cause.”).

Accordingly, because Mr. Carter fails to establish a Fourth Amendment violation,

Ground Two is denied.

F. Ground Four—Alleged Confrontation Clause Violations4

Mr. Carter contends that the Sixth Amendment’s Confrontation Clause was violated

when he “was not permitted to cross-examine” several witnesses “regarding possible

prejudice and bias that may have caused faulty identification of the defendant.” (Doc. 18

4 The Court previously dismissed Ground Three “without prejudice to asserting the claim in a separate civil

rights violation action.” (Doc. 19 at 1).

at 15). The witnesses he was allegedly not permitted to cross-examine were Deputy

Wilfong, Michael McCullough, Teagan Myers, Deputy Bjar A. Atkins, Jacob D. Becker,

Detective Patrick S. Cole, Deputy Christopher M. Hinkle, Detective Kari L. Mathewson,

Irma R. O’Connor, Deputy Craig A. Roberts, and Detective Chuck B. Sackman. (Id. at 15-

16).

This claim is meritless. None of the persons listed in Ground Four testified at trial.

Nor were any of their statements introduced. (Doc. 28-2, Ex. 3). Thus, Mr. Carter appears

to contend that the Confrontation Clause was violated because he was not given an

opportunity to elicit favorable testimony from several uncalled witnesses. But the

prosecution “was under no obligation to call” at trial the persons listed in Ground Four.

McAllister v. Brown, 555 F.2d 1277, 1278 (5th Cir. 1977); see also Cooper v. California,

386 U.S. 58, 62 n.2 (1967) (“Petitioner also presents the contention here that he was

unconstitutionally deprived of the right to confront the witnesses against him, because the

State did not produce the informant to testify against him. This contention we consider

absolutely devoid of merit.”). And “[t]he confrontation clause does not come into play

where a potential witness neither testifies nor provides evidence at trial.” United States v.

Porter, 764 F.2d 1, 9 (1st Cir. 1985). Because the persons listed in Ground Four were not

witnesses at trial and no statements by them were introduced, Mr. Carter’s inability to

question them did not violate the Confrontation Clause. See United States v. Azmat, No.

CR413-28, 2014 WL 29461, at *1 (S.D. Ga. Jan. 3, 2014) (“If the Government does not

call these persons as witnesses or introduce testimonial statements from any of them at

trial, the Court cannot discern how or why any defendant’s Sixth Amendment right of

confrontation could be violated.”). Ground Four is denied.

G. Ground Five—Alleged Speedy Trial Violation

Mr. Carter contends that his right to a speedy trial “was violated when trial counsel

failed to move for discharge and to investigate speedy trial violation.” (Doc. 18 at 22). As

discussed above in connection with Ground One, Sub-Claim B, there is no basis to

conclude that the trial court violated Mr. Carter’s right to a speedy trial under state or

federal law. Accordingly, even under de novo review, Mr. Carter’s speedy trial claim lacks

merit.5

In support of his claim, Mr. Carter cites a portion of the trial transcript in which

counsel and the court discussed “another pending case, the felon in possession of the

firearm charge.” (Doc. 28-2, Ex. 3, at 208). The following exchange took place:

THE COURT: When is the—the second matter, when does speedy run on

that case?

[THE STATE]: Well, that’s a tough—

[DEFENSE COUNSEL]: Tough question.

[THE STATE]: That’s a tough question since there was an appeal involved

in these cases, Judge.

THE COURT: Okay. So you can’t give me an exact time?

[THE STATE]: No.

THE COURT: So after—

5 Because this claim fails on the merits, the Court need not address Respondent’s argument that it is

procedurally defaulted.

[THE STATE]: I don’t believe it was ever waived. Judge, I think we’ll be

able to resolve or figure out what to do with this case without going to trial

in the felon in possession after this case is—to be sentenced on this robbery

case.

(Id.) The prosecution subsequently “announce[d] a nolle pros” in the felon-in-possession

case. (Id. at 224).

This exchange does not support Mr. Carter’s speedy trial claim. The discussion

concerned a separate criminal case in which Mr. Carter had been charged with being a

felon in possession of a firearm. That charge was ultimately nolle prossed. “A federal

habeas petitioner must be ‘in custody’ under the conviction or sentence under attack at the

time his petition is filed.” Diaz v. State of Fla. Fourth Jud. Cir. ex rel. Duval Cnty., 683

F.3d 1261, 1264 (11th Cir. 2012). Because the felon-in-possession charge was nolle

prossed, Mr. Carter was never “in custody” pursuant to a judgment in that case.

Accordingly, this Court lacks jurisdiction over any speedy trial challenge to the felon-in-

possession charge. See Brewer v. Escambia Cnty. Sheriff’s Dep’t, No. 3:15-cv-550-LC-

GRJ, 2016 WL 1084720, at *1 (N.D. Fla. Feb. 18, 2016) (“[T]he charge against Petitioner

for the offense identified in her Petition was ‘nolle prosequi.’ The entry of nolle prosequi

is not a judgment by a state court. . . . Petitioner, therefore, is neither in custody, nor was

there a ‘judgment’ by a state court entitling Petitioner to pursue relief under § 2254.”),

adopted by 2016 WL 1090571 (N.D. Fla. Mar. 18, 2016).

Ground Five is denied.

H. Ground Six—Alleged Due Process Violations

In Ground Six, Mr. Carter repeats arguments raised elsewhere in his petition. He

again complains that Deputy Wilfong relied on “hearsay” statements from the victims in

preparing the criminal report affidavit. (Doc. 18 at 23). And he restates his objections to

the alleged defects in the superseding information. (Id. at 23-24). According to Mr. Carter,

these alleged errors violated double jeopardy and deprived him of his right to due process

under the federal constitution. (Id.) For the reasons explained above in connection with

Ground One, Sub-Claim A and Ground Two, none of Mr. Carter’s allegations about the

affidavit or the information support federal habeas relief. Accordingly, Ground Six is

denied.6

I. Ground Seven, Sub-Claim A—Alleged Violation of Right to Impartial

Jury

Mr. Carter alleges that his right to an impartial jury was violated because (1) the

prosecution “select[ed] at least one racially discriminating juror,” whose bias was

demonstrated by his “prior involvement with another robbery case”; (2) the “community

where members of the jury work[ed] or live[d] was exposed to inflammatory media

accounts of [the] case”; (3) “members of certain racial, religious, gender, or age-base[d]

(the elderly) groups were excluded from the jury pool”; and (4) the prosecution

“intentionally used . . . peremptory challenges . . . to remove members of a particular racial

6 To the extent that Mr. Carter alleges counsel was ineffective for failing to call Deputy Wilfong at trial, he

fails to allege any facts suggesting that counsel was deficient or that he was prejudiced.

group or gender from the jury.” (Id. at 25). More generally, Mr. Carter claims that “there

is suspicion concerning the jury selection process” in his case. (Id. at 26).

Respondent correctly contends that these claims are unexhausted and procedurally

defaulted. (Doc. 27 at 62-63). To satisfy the exhaustion requirement, a petitioner “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,” either on direct

appeal or on collateral review. Boerckel, 526 U.S. at 845. Mr. Carter did not raise any

arguments about the “jury selection process” on direct appeal. (Doc. 28-2, Ex. 5). Nor did

he present the issue in any of his state postconviction filings. (Id., Exs. 10, 11; Doc. 28-3,

Ex. 18). Mr. Carter’s failure to present these claims in state court renders them

unexhausted.

Mr. Carter cannot return to state court to present his unexhausted claims in a second,

untimely direct appeal. See Fla. R. App. P. 9.140(b)(3) (stating that a notice of appeal must

be filed within thirty days of the rendition of a sentence). Nor can he raise them in another

postconviction motion. See Fla. R. Crim. P. 3.850(b) (imposing two-year window of time

to file motion for postconviction relief). As a result, Mr. Carter’s challenges to the jury

selection process are procedurally defaulted. See Smith, 256 F.3d at 1138 (“If the petitioner

has failed to exhaust state remedies that are no longer available, that failure is a procedural

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

fundamental miscarriage of justice exception is established.”). Because Mr. Carter has not

shown that an exception applies to overcome the default, Ground Seven, Sub-Claim A is

barred from federal habeas review.

J. Ground Seven, Sub-Claim B—Miscellaneous Arguments

Finally, Mr. Carter argues that (1) the redaction of the beginning of the 911 call

violated his “right to a fair and impartial judge and jury,” and (2) the trial court failed to

“correctly define the element of take” in the jury instructions for robbery. (Doc. 18 at 26-

27). Both arguments lack merit.7

First, Mr. Carter fails to show that the redaction violated his constitutional rights.

“[F]ederal courts will not generally review state trial courts’ evidentiary determinations.”

Taylor v. Sec’y, Fla. Dep’t of Corr., 760 F.3d 1284, 1295 (11th Cir. 2014). “Indeed, in a

habeas corpus action brought by a state prisoner, [the court’s] authority is severely

restricted in the review of state evidentiary rulings.” Id. “Habeas relief is warranted only

when the error so infused the trial with unfairness as to deny due process of law.” Id.; see

also Mills v. Singletary, 161 F.3d 1273, 1289 (11th Cir. 1998) (“We will not grant federal

habeas corpus relief based on an evidentiary ruling unless the ruling affects the

fundamental fairness of the trial.”). “Fundamental fairness is violated when the evidence

excluded is material in the sense of a crucial, critical, highly significant factor.” Demps v.

Wainwright, 805 F.2d 1426, 1430 (11th Cir. 1986).

Mr. Carter fails to establish that any error occurred when the jury heard a redacted

version of the 911 call. As noted above, Mr. Carter provides no information about what

was said during the portion of the call that was not played to the jury. Nor does he contend

that the redacted version “creat[ed] [a] misleading impression[]” of the call “by taking

7 Because these claims fail on the merits, the Court need not address Respondent’s argument that they are

procedurally defaulted.

statements out of context,” as would be required to show that the entire tape should have

been played under “the rule of completeness.” Larzelere v. State, 676 So. 2d 394, 401 (Fla.

1996). Furthermore, Mr. Carter fails to allege any facts suggesting that the redacted portion

of the recording was “material in the sense of a crucial, critical, highly significant factor.”

Demps, 805 F.2d at 1430. In these circumstances, there is no basis to conclude that Mr.

Carter’s constitutional rights were violated because the jury heard a redacted version of the

911 call.

Mr. Carter also fails to show that he is entitled to relief based on the jury instructions.

“A jury instruction that was allegedly incorrect under state law is not a basis for habeas

relief, because federal habeas review is limited to deciding whether a conviction violated

the Constitution, laws, or treaties of the United States.” Jamerson v. Sec’y for Dep’t of

Corr., 410 F.3d 682, 688 (11th Cir. 2005). “[F]ederal courts on habeas review are

constrained to determine only whether the challenged instruction, viewed in the context of

both the entire charge and the trial record, so infected the entire trial that the resulting

conviction violate[d] due process.” Id.

The jury in Mr. Carter’s case received Florida’s standard instruction on robbery.

Compare Fla. Std. Jury Instr. (Crim.) 15.1, with Doc. 28-2, Ex. 2, at 104-05, 109-110. Mr.

Carter fails to explain how the standard instruction was deficient, and he offers no basis to

conclude that it misstated any aspect of Florida law. Accordingly, Mr. Carter cannot

establish that “the challenged instruction, viewed in the context of both the entire charge

and the trial record, so infected the entire trial that the resulting conviction violate[d] due

process.” Jamerson, 410 F.3d at 688; see also Destine v. McDonough, No. 06-61568-CIV,

2008 WL 4792364, at *8 (S.D. Fla. Oct. 31, 2008) (holding that petitioner “state[d] no

basis for federal relief” “where the jury received the standard instruction on the

voluntariness of a confession that was approved by the Florida Supreme Court”). Ground

Seven, Sub-Claim B is denied.8

Accordingly, the Court ORDERS:

1. Mr. Carter’s third amended petition (Doc. 18) is DENIED.

2. The CLERK is directed to enter judgment against Mr. Carter and to CLOSE this

case.

3. Mr. Carter is not entitled to a certificate of appealability. A prisoner seeking a writ

of habeas corpus has no absolute entitlement to appeal a district court’s denial of his

petition. 28 U.S.C. § 2253(c)(1). “A certificate of appealability may issue . . . only

if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To obtain a certificate of appealability, Mr. Carter

must show that reasonable jurists would find debatable both the merits of the

underlying claims and the procedural issues he seeks to raise. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Mr. Carter has not made the requisite showing.

Because Mr. Carter is not entitled to a certificate of appealability, he is not entitled

to appeal in forma pauperis.

DONE AND ORDERED in Tampa, Florida, on January 23, 2024.

8 To the extent that Mr. Carter reiterates his assertion that he was denied the right to a speedy trial, that

claim fails for the reasons explained above in connection with Ground One, Sub-Claim B.

UNITED STATES DISTRICT JUDGE

34