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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LAMONTE CHARLES ARRINGTON,

Petitioner,

v. Case No. 3:21-cv-22-TJC-MCR

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 attempted first-degree murder as a principal for which he is

serving a thirty-year term of incarceration. See id. Respondents filed a

Response (Doc. 6; Response) with exhibits (Docs. 6-1 to 6-7; Ex.). Petitioner filed

a Reply (Doc. 7). This case is ripe for review.1

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.”

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

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

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.

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

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

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

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

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

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

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. Relevant Procedural History

The state of Florida charged Petitioner with one count of attempted first-

degree murder of Nimley W. Nimley and a separate count of accessory after the

fact to the attempted first-degree murder of Nimley. Ex. A at 57. At the

conclusion of a jury trial, the jury found Petitioner guilty as charged on both

counts. Ex. A at 84-85; Ex. D at 824. The trial court adjudicated Petitioner guilty

of the attempted first-degree murder count only and sentenced him to a term of

thirty-years imprisonment. Ex. A at 129-34; see also id. at 155-85 (sentencing

transcript).

Petitioner, through counsel, filed a direct appeal raising four claims: (1)

the trial court erred in denying Petitioner’s motion for judgment of acquittal as

to count one on the basis that there was legally insufficient evidence to convict

him as a principal; (2) the prosecutor’s misstatement of the law in the rebuttal

closing argument amounted to fundamental error; (3) the trial court

fundamentally erred by failing to instruct the jury that it could only convict

Petitioner of one of the two mutually-exclusive charges; and (4) Petitioner’s

conviction rests on a legally inconsistent verdict and must be overturned. Ex.

F. The state filed an answer brief, Ex. G, and Petitioner filed a counseled reply,

Ex. H. The First District Court of Appeal per curiam affirmed Petitioner’s

conviction and sentence without issuing a written opinion. Ex. I.

Subsequently, Petitioner filed a pro se motion under Florida Rule of

Criminal Procedure 3.850. Ex. L at 1-37. The postconviction court summarily

denied Petitioner’s motion, adopting the state’s response thereto as its opinion.

See id. at 38-132. Petitioner appealed, and the First DCA per curiam affirmed

the postconviction court’s denial without issuing a written opinion. Ex. O.

Petitioner then returned to the state trial court, filing a Rule 3.800(a)

motion to correct an illegal sentence. Ex. Q. The trial court granted Petitioner’s

motion to the extent that count two – accessory after the fact – was dismissed.

Ex. S.

Petitioner filed the instant case on January 5, 2021 (mailbox rule).

IV. Relevant Trial Testimony and Evidence

The following summary is taken from Petitioner’s and the state’s briefs

on direct appeal.

On the Saturday evening of September 6, 2014,

about 10:30 p.m., a young man named Nimley W.

Nimley (nickname of “Spicy”) was shot multiple times

some 26 seconds after an in-store surveillance film

showed him exiting a 7-Eleven store located in

Jacksonville Beach. The same surveillance recording

also showed individuals, later determined to be

Arrington [(Petitioner)] and Hilton-Washington

[(Petitioner’s co-defendant)], walking out of the store

within a few seconds of Nimley. Specifically, Nimley

had exited first, then Arrington, then Hilton-

Washington. The 7-Eleven in question did not have

any security cameras recording the grounds area

outside the store. Therefore, the in-store recording did

not capture the shooting incident itself, or capture

what transpired in the 26-second time gap leading up

to the shooting. Six (6) spent .45 caliber casings were

recovered at the scene. Five (5) of the recovered

casings were submitted to FDLE for testing; and that

testing determined the five (5) examined casings had

all been fired from the same gun. Nimley survived, but

was left paralyzed from the waist down.

Based on early investigative inquiry, the police

learned the shooting victim had previously been inside

the 7-Eleven. In the initial wave of interviews, none of

the witnesses claimed to have seen the faces of any

possible suspect or suspects,--but some clothing

descriptions were given. Multiple cars reportedly left

the scene. Some witnesses reported seeing an older-

model, black 4-door car leave post-shooting. Others

reported seeing a silver car screech off, post-shooting.

The police also received conflicting information on

whether there had been one shooter or two.

After viewing the in-store surveillance film, and

speaking with Nimley and others, Detective Anthony

Martin (of the Jacksonville Police Department)

developed Defendant Arrington (nickname “Mayo”) as

a person of interest. Nimley had revealed that he

recognized “Mayo”, i.e., Arrington, as the individual

Nimley’s former girlfriend, Jessica Ennis, had cheated

on him with. Nimley also said the unknown person

who shot him was accompanied by Arrington.

Detective Martin subsequently developed Defendant

Hilton-Washington as a person of interest after

learning he and Arrington were roommates. The

surveillance footage showed Arrington to be an

African-American male with dreadlocks, dressed in a

dark shirt and camouflage shorts. In the video,

Arrington was observed entering the store within a

minute or so of Nimley having done so. Arrington

entered the store virtually simultaneously with

Hilton-Washington and a never identified Caucasian

male. The surveillance footage showed Hilton-

Washington to be an African-American male dressed

in a black shirt and khaki shorts. There appeared to

be a bulge in Hilton-Washington’s right front pocket.

On September 10, 2014, Detective Martin

continued the investigation by going to Georgia to

speak with Ms. Ennis. When shown still photos

derived from the surveillance video, she identified

Nimley, Arrington, and Hilton-Washington as all

being inside the convenience store before the off-

camera shooting event occurred. She also provided the

detective certain Facebook communications she

represented as occurring between her and Arrington.

A warrant search of the defendants’ residence on

September 11, 2014, produced the title to a black 4-

door Mitsubishi car registered to Arrington. The title

was seized since some early witness reports had

mentioned that an older, black-colored 4-door car was

observed leaving the scene. No gun related to the

shooting was found in either the search of the house or

car.

Nimley testified Jessica Ennis was a former

girlfriend whom he had lived with in St. Mary’s

Georgia, back in 2013-2014. Through a friend of

Jessica’s, he’d gotten to know “Mayo”, i.e., Arrington.

He and Arrington would spend time together, and he

was aware of the fact that Arrington had a black

Mitsubishi automobile. Sometimes, Arrington would

drive Nimley over to the Jacksonville Beach area

where they would then socialize with some of Nimley’s

friends who lived there. Approximately two (2) months

before the shooting, he had angrily severed his ties

with Ms. Ennis and Arrington and moved back to the

Jacksonville area after learning she was cheating on

him with Arrington. Until such time as Arrington

walked into the 7-Eleven on September 6, 2014,

Nimley probably hadn’t seen him since June or July of

2014. According to Nimley, the verbal interaction

between he and Arrington within the store was limited

to Nimley saying “What’s up?”; Arrington responding

with “Do you want to step outside?”; and Nimley

replying “Yeah”. He had no verbal interaction

whatsoever with Hilton-Washington. Nimley stepped

outside first,--turning to his right in case he was about

to get jumped and it became necessary to make a

beeline toward a friend’s nearby house. Within a few

steps, Nimley looked over his right shoulder and saw

Arrington running toward a little cutaway. He then

looked for Arrington’s companion and observed him

pulling a gun out of his pocket. Nimley then began

running as multiple shots were fired. A shot to his

upper leg caused Nimley to drop to the ground. He was

hit in the stomach by another shot. Then the shooter

came over, stood over him, and put the gun to Nimley’s

head before pulling the trigger. Somehow, he managed

to put his hand up in time to deflect the final shot so

that the bullet only grazed his head. The shooter then

ran off in the same general direction Arrington had

gone. Nimley did not ever see a gun in Arrington’s

possession. Nimley did not see the shooter or

Arrington drive off in any car. At trial, he made a

positive identification of Defendant Hilton-

Washington as the person who shot him multiple

times. However, just 5 or 6 days post-shooting, Nimley

had identified a completely different person as “that

person [who] tried to execute me” when shown a photo

array containing Hilton-Washington’s photograph.

One day later, after the police had him watch the in-

store surveillance video, Nimley identified Hilton-

Washington as the person who had shot him. Prior to

September 6, 2014, Nimley had never met or even

heard of Hilton-Washington.

. . . .

Prosecution witness, Zachary Loizos, testified he

was among the group of people, including “Spicy”

[Nimley], who left Nick Harris’ house and walked a

block or two over to the nearby 7-Eleven store on the

night of September 6, 2014. While inside, he heard

“Spicy” say to someone in a loud, aggressive tone

words to the effect of “We’ll go outside and handle our

business.” Based on the tone, volume, and tension

level in the air, Loizos assumed a fight was about to

break out between “Spicy” and the person he was

addressing. He was on the verge of going outside to

watch the expected fight when he heard multiple gun

shots. When the shooting subsided, and Loizos

ventured out, he saw Nimley lying wounded in the

middle of the road by a stop sign. He waited with

Nimley until emergency responders arrived. Loizos

did not see the actual shooting, and he had no personal

knowledge of who the shooter or shooters might be. He

did witness a silver or gray car screeching away from

the scene.

Prosecution witness, Ryan Morrison, testified

that from a balcony of Bo’s Coral Reef, his attention

was drawn by the sound of popping noises. From a

vantage point affording an unobstructed view, he saw

two people chasing another person and shooting at

him. Morrison believed one of the shooters was

Caucasian. He also testified one of the shooters may

have been wearing a hoodie. One kept running, but the

other one doubled back to administer a “kill shot” to

the person on the ground. The men ran off in slightly

different directions.

Prosecution witness, James Domenico, testified

he was smoking a cigarette on the balcony of his

apartment at approximately 10:30 p.m. [on]

September 6, 2014, when he heard gunshots. He

retreated inside. Perhaps 30 seconds after the

shooting subsided, he observed two men running. One,

a shorter-haired African-American man, went to an

older, black 4-door car before driving over to pick up a

second African-American man. The second man was

described as thinly-built with dreadlocks. When they

left, the one with shorter hair was still driving the car.

Domenico described the shorter-haired individual as

wearing a black shirt and brown shorts. He could not

remember what the other man was wearing. Domenico

did not attempt to make any identification of the

individuals he had observed, and he acknowledged he

didn’t see the shooting and lacked personal knowledge

of who the perpetrator(s) might be.

. . . .

Jessica Ennis testified she met Nimley in

November of 2013, and had a 9-month romantic

relationship with him which ended in July of 2014. For

a time, they cohabitated at her house in Georgia.

Multiple times a week, she would drive him to the

Beaches area of Jacksonville and drop him off by the

7-Eleven store which was close to where his friend,

Nick Harris, lived. In due time, she would return and

pick Nimley up by the same 7-Eleven store. They had

a “falling out” in July of 2014 when he discovered she

had begun cheating on him with Arrington. Nimley

was angry over this discovery due to a sense of

wounded pride. He and Arrington had previously

socialized together-including driving over to the

Beaches area of Jacksonville. She was unaware of

whether Nimley and Arrington “had words” with each

other in the wake of the breakup. After the breakup,

she had no further contact with Nimley.

Ms. Ennis and Defendant Arrington continued

to see each other. Through him, she’d met “Cordy”, i.e.,

Hilton-Washington, who was in the Navy. Arrington

and Hilton-Washington lived together, both hailed

from Baltimore, and called each other brothers.

Though both men used the black Mitsubishi car, she

believed the car was actually owned by Hilton-

Washington. She first learned Nimley had been shot

after reading a Facebook message Nick Harris posted

about 11 p.m. on the night of the shooting. At no time

did Arrington ever admit to any involvement in

Nimley’s shooting. In the several days that followed,

she and Arrington exchanged a number of Facebook

messages. Some were expressions of love and affection.

Not long after her 7:32 a.m., 9/7/14, expression of

shock and dismay upon initially learning of Nimley’s

shooting, Arrington responded with “Well, don’t worry,

no one’s gonna hurt you I will make sure of it.” At 3:18

p.m. on 9/7/14, the Defendant sent the message “Be

cool if police come you don’t know anything and don’t

have anything to do with it if they keep talking and

pressing u ask for a lawyer Your [sic] okay no ones

going to hurt you.” In response to her 9/7/14, 3:50 p.m.

message of “Whatever I’m not going to argue with you

about this. . . We have different views and morals”-she

received a message saying “Wateva yo me and my bro

ain’t do nothing but show u love and help u out just

because we care but not u compare me and him fuc all

dat I don’[t wanna talk about this shit no more.” The

two exchanged various Facebook messages on a

variety of subjects between 9/6 and 9/9. For example,

Arrington expressed fear for his personal safety

arising from concern that some of Nimley’s friends

might seek revenge based on the assumption he had

something to do with the shooting. Ms. Ennis turned

the Facebook messages over to law enforcement. She

was aware of Arrington traveling to Baltimore to see

his ill mother.

Defendant Hilton-Washington testified

Arrington was his best friend. On September 6, 2014,

they went to the Beaches area of Jacksonville just to

enjoy the weekend day. Hilton-Washington drove

Arrington to the Beaches area that night in the black

Mitsubishi because Arrington had consumed some

alcoholic drinks before leaving Georgia. When at a

Beaches area 7-Eleven, he noticed Arrington was

talking to another person. He didn’t know why

Arrington was talking to the man, and he didn’t know

“Spicy” by face. Though Hilton-Washington did know

that Arrington and a person named “Spicy” didn’t care

much for each other, he was unaware of any jealously

problems between the two. While at the 7-Eleven,

Arrington had done nothing to describe or point

“Spicy” out to him. When Arrington chose to exit the

store, Hilton-Washington followed. They walked back

to various bars located at the beach. He denied being

armed. He denied that he and Arrington were involved

in any shooting incident. He denied hearing any

gunshots ring out after they exited the 7-Eleven.

Ex. F at 5-15 (internal record citations omitted).

The state agreed that the Petitioner’s recitation of the testimony at trial

was “generally supported by the record, subject to the supplementation that

follows:”

Jessica Ennis was Victim’s ex-girlfriend. The

two lived in St. Mary’s, Georgia. Victim met

[Arrington] through Ennis. At times, [Arrington]

would drive Victim to Jacksonville Beach, Florida to

hang out with Victim’s friend Nick Harris. [Arrington]

would drive Victim in [Arrington’s] black Mitsubishi.

Victim had neither met [Arrington’s] co-defendant, nor

known [Arrington] to affiliate with [Hilton-

Washington].

Victim came to learn that Ennis cheated on

Victim with [Arrington]. After learning this, Victim

moved back to Florida. On September 6, 2014, Victim

was working at Walgreens, he had seen neither Ennis,

nor [Arrington] since June or July. After work, Victim

went to Harris’ home and met up with some friends.

Ultimately, a group from Harris’ home went to the 7-

Eleven nearby to get some refreshments. While at the

7-Eleven, [Arrington] and [Hilton-Washington]

entered the store. Victim was shocked, and wondered

what [Arrington] was doing in Florida. Victim said

what’s up to [Arrington], and [Arrington] asked if

Victim wanted to step outside. Victim agreed to step

outside the store. At the time Victim exited the store

with [Arrington] and [Hilton-Washington], Victim

thought the worst that would happen is Victim would

be jumped by the pair.

Victim testified to what occurred next as follows:

Right when I step outside, I made that

right turn, I probably took like maybe two

steps each, and I kind of saw Mayo . . .

kind of like running off from behind my

right shoulder, I saw him going the other

way, so I looked left to see where he was

going, and after I seen him running for the

little -- the little cutaway, I felt his friend

still behind me on the other side. All this

happened in a matter of seconds. So, I

looked back to see over my right shoulder

to see what his friend was doing, and as

soon as I turned around, this guy was

pulling out a gun out of his pocket.

Victim attempted to run away and was shot by [Hilton-

Washington]. Up until this point [Hilton-Washington]

had said nothing to Victim, and Victim had said

nothing to [Hilton-Washington]. Victim testified he

had “never met the guy” in his life.

After being hit, Victim was on the ground

helpless. He then explained as follows: “He [Hilton-

Washington] started walking directly towards me and

he stood right on top of me and put the gun to my

head.” Victim put his hand up to block the shot, and

the bullet only grazed him. Then, Victim heard the gun

clicking, but it was either out of bullets or jammed

because he was not shot anymore. [Hilton-

Washington] ran off once he realized the gun was no

longer firing. [Hilton-Washington] got into a black-

four door car, picked [Arrington] up, and they drove

away with their lights off--even though it was night.

Ex. G at 1-3 (internal record citations omitted).

V. Analysis

A. Grounds One and Two5

In Ground One, Petitioner argues that his trial counsel was ineffective for

failing to object and/or request that the trial court instruct the jury “that it could

only convict Petitioner of only one of the mutually exclusive offenses charged in

counts one and two.” Doc. 1-1 at 1 (some capitalization omitted). Petitioner

contends that he was charged in count one “with acting as a principal in

connection with the attempted murder of Mr. Nimley” and in count two, he “was

charged with being an accessory after the fact to Nimley’s attempted

murder . . . in spite of the fact that the charged offenses were mutually

exclusive, as a matter of Florida law.” Id. In Ground Two, Petitioner contends

that his trial counsel was ineffective for failing to object to the prosecutorial

misconduct during closing arguments. Id. at 7. According to Petitioner, the

prosecutor misstated the law and “erroneously instructed the jury that there

was no inconsistency between being charged with being a princip[al] to

attempted murder and being charged as an accessory after the fact.” Id.

Petitioner raised these claims in his Rule 3.850 motion. The state court

summarily denied the claims. Ex. L at 39. In doing so, the court adopted the

5 In denying Petitioner’s Rule 3.850 motion, the state court addressed these grounds

together. In light of the state court’s order and the similarities between the Grounds,

this Court addresses them together as well.

state’s response “as the factual and legal findings of the Court” and attached

the state’s response as an exhibit to the order. Id. The state’s response

addressed these two claims as follows:

In Claim 1, the Defendant avers that counsel

was ineffective in failing to object to [his] conviction for

mutually exclusive offenses and/or failing to request

that the Court instruct the jury that it could only

convict the Defendant of one of the mutually exclusive

offenses in Counts I and II.

This claim is refuted by the record. In closing

arguments, Defense counsel argued the very theory

upon which Arrington rests in this motion before the

court, that the jury could not return verdicts for both

Attempted First Degree Murder, as a principal, and

Accessory after the Fact. Thus, there is no

ineffectiveness, as defense counsel did make argument

regarding this issue.

Relatedly, in Claim 4, the Defendant avers that

counsel was ineffective for failing to object to closing

arguments by the State, which encouraged the jury to

return guilty verdicts as to both counts. Courts

generally have deferred greatly to counsel’s decisions

whether to object or not during trial as a strategic one.

The Supreme Court of Florida has ruled that judicious

use of objections is not deficient where counsel chooses

not to object as part of a style or strategy in order to

avoid antagonizing the jury or losing credibility.

Brown v. State, 846 So. 2d 114 (Fla. 2003).

Accordingly, these claims may be summarily

denied as the Defendant failed to identify acts or

missions of counsel that were manifestly outside the

wide range of reasonably competent performance

under prevailing professional norms. Defense

counsel’s use of objections can be viewed as strategic,

as the record reflects counsel did in fact make several

objections to misstatements of the law. Moreover,

counsel did make argument regarding the dual

offenses charged and urged the jury to reject both, both

because they were inconsistent, but also because the

State failed to meet its burden in proving either charge

beyond a reasonable doubt.

Moreover, the record clearly indicates that, even

if counsel had made no argument, the Defendant has

suffered no prejudice due to the dual convictions.

The Supreme Court of Florida has held that a

person convicted as a principal to a crime cannot also

be convicted as an accessory after the fact to the same

crime, since these two offenses are mutually exclusive.

Donaldson v. State, 722 So. 2d 177, 184 (Fla. 1998).

However, the Court has gone on to ratify the entry of

judgment and sentence on the principal crime, so long

as the accessory charge does not stand.

For example, in Staten v. State, 519 So. 2d 622,

623-24 (Fla. 1988), the appellant was convicted of

second-degree murder, aggravated battery, armed

robbery, and three counts of accessory after the fact.

The Florida Supreme Court concluded that the

legislature intended that the offense of accessory after

the fact apply only to individuals who are not

principals in the underlying offense. Id. at 626. The

court noted that convictions for both offenses do not

violate double jeopardy princip[le]s and that its

decision was based only on its construction of the

statute defining the crime of accessory after the fact.

Id. at 625 (citing § 777.031 Fla. Stat. (1985)). The court

reasoned that “a principal cannot also become an

accessory after the fact by his or her subsequent acts.”

Id.; see also Bowen v. State, 791 So. 2d 44, 50 (Fla. 2d

DCA 2001) (“[A] person cannot be convicted as both a

principal in a crime and as an accessory after the fact

to the same crime, and the crime of accessory after the

fact cannot arise until the underlying crime is

complete.”). The Court then remanded the case only

for the trial court to vacate the convictions as to the

accessory charge. Id. at 626.

Similarly, the Florida Supreme Court

considered this issue in Branton v. State, 86 So.3d 560

(Fla. 2012), where the appellant was convicted of

robbery with a firearm and three counts of accessory

after the fact to robbery with a firearm. Relying on the

analysis in Staten, the Court reversed and remanded

the appellant’s judgments and sentences for three

counts of accessory for the trial court to vacate those

judgments and sentences, but affirmed the appellant’s

judgment and sentence for the charge of robbery (as a

principal).

In Arrington’s case, the court did not enter a

judgment nor sentence the Defendant on Count II,

Accessory After the Fact, solely sentencing the

defendant as to [C]ount I, and entering a judgment

and sentence as to Count I. Thus, the Defendant is not

faced with the dilemma of the appellants as discussed

above.

The Defendant has cited Bazemore v. State, 79

So. 3d 828 (Fla. 2d DCA 2011)[,] in his motion for the

proposition that had the jury been instructed on

mutual exclusion, they would have only found him

guilty of the lesser charge; however, the facts of that

case are distinct from the facts of Defendant’s case.

The verdict form considered by the jury in Bazemore

did not specify to which Victim the accessory charge

related, and the appellant in that case was found

guilty as to the murder of only one of the two charged

victims. Id. at 830. The Second DCA, while

acknowledging that there may be occasions where the

trial court could select the greater offense for charging,

felt that the confusion in the verdicts was too great to

make such a selection. Id. at 830.

Here, the instructions, information, and verdict

forms were clear that the jury w[as] to consider the

charges as they related to Defendant’s actions towards

the Victim Nimley. Thus, there is no confusion as was

present in Bazemore, and this Court could be

sufficiently certain, as acknowledged by the Second

DCA, to sentence the Defendant on the higher count

based on the strength of the evidence. Therefore, the

court may summarily deny Claims 1 and 4, since the

Defendant has failed to show a reasonable probability

that would undermine confidence in the jury’s verdict.

Ex. L at 56-58 (internal record citations omitted and citations modified).

Petitioner appealed the denial of his Rule 3.850 motion, and the First DCA per

curiam affirmed the denial without issuing a written opinion. Ex. O.

The Court addresses these claims in accordance with the deferential

standard for federal court review of state court adjudications. Under Florida

law, “a person convicted as a principal to a crime cannot also be convicted as an

accessory after the fact to the same crime, since these two offenses are mutually

exclusive.” Donaldson v. State, 722 So. 2d 177, 184 (Fla. 1998) (citing Staten,

519 So. 2d at 625). Here, the jury rendered guilty verdicts on the attempted

murder (count I) and accessory after the fact (count II) charges, but the state

court only sentenced Petitioner on count I, eventually dismissing count II. Thus,

although the jury found Petitioner guilty on count II, his conviction was never

final as the state court never adjudicated him guilty or sentenced him on that

count.6

6 Even if the state court had sentenced Petitioner on both counts, it is likely the First

DCA would have affirmed the attempted murder conviction and reversed and

The information, jury instructions, and verdict form all identified Nimley

as the sole victim; thus, the jury was well aware they were to consider

Petitioner’s actions as it related to Nimley. The evidence supported Petitioner’s

conviction for attempted first-degree murder.7 Given the jury’s finding that

Petitioner was guilty of attempted first-degree murder, they could not legally

find that he was also guilty of accessory after the fact. Petitioner’s counsel

argued as such in his closing.

While counsel likely should have requested a clarifying instruction or

objected when the state made a legally incorrect argument during closing,

Petitioner cannot show that counsel’s alleged failure to do so prejudiced him.

Indeed, Petitioner has not shown a reasonable probability exists that but for

counsel’s alleged ineffectiveness, the outcome of his trial would have been

remanded for the trial court to vacate the accessory after the fact conviction. See

Vowell v. State, 281 So. 3d 1294 (Fla. 1st DCA 2019) (affirming the appellant’s murder

conviction but reversing and remanding for the state court to vacate the appellant’s

conviction for accessory after the fact to the murder “because a person convicted as a

principal to a crime cannot also be convicted as an accessory after the fact to the same

crime”).

7 On direct appeal, Petitioner, through counsel, challenged the sufficiency of the

evidence with respect to his conviction as a principal to the first-degree murder. The

First DCA per curiam affirmed his conviction and sentence without issuing a written

opinion. The record supports the state court’s adjudication and thus, to the extent

Petitioner seeks to challenge the sufficiency of the evidence supporting his conviction

for count I, this Court defers to the First DCA’s opinion. The Court finds that the state

court’s adjudication 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.

different. His contention that had the jury been instructed on the mutually-

exclusive counts, they would have only convicted him on count II, if at all, is

entirely speculative. And to the extent that Petitioner argues that his counsel’s

failure to object or request a jury instruction on this issue prejudiced him by

taking away the jury’s pardon power, “[t]he possibility of a jury pardon cannot

form the basis for a finding of prejudice under Strickland.” Sanders v. State,

946 So. 2d 953, 959-60 (Fla. 2006); Strickland, 466 U.S. at 694-95 (noting in

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

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

favorable to the defendant must exclude the possibility of arbitrariness,

whimsy, caprice, ‘nullification,’ and the like. A defendant has no entitlement to

the luck of a lawless decisionmaker, even if a lawless decision cannot be

reviewed.”).

Thus, upon thorough review of the record, the Court finds that the state

court’s adjudication of these claims 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, Grounds One

and Two are denied.8

8 Insofar as Petitioner argues the state postconviction court erred by failing to hold an

evidentiary hearing, such a claim is not cognizable in a federal habeas petition. See

B. Ground Three

Petitioner argues that he was denied due process and the effective

assistance of trial counsel when the prosecutor “knowingly utilized perjured

testimony in violation of Giglio v. United States, 92 S. Ct. 763 (1972).” Doc. 1-1

at 13. He asserts that prior to trial, the victim and another witness testified

that the victim asked Petitioner to step outside of the store, but during the trial,

the victim testified that Petitioner was the one who suggested they go outside,

and the prosecutor and Petitioner’s trial counsel failed to correct this false

testimony. See id. at 13-17. Petitioner acknowledges that he did not raise this

claim in state court, but he requests this Court consider the claim under the

narrow exception outlined in Martinez.

In Martinez, the Supreme Court recognized a narrow exception to the rule

that an attorney’s error in a postconviction proceeding does not constitute cause

for a procedural default:

Where, under state law, claims of ineffective

assistance of trial counsel must be raised in an initial-

review collateral proceeding, a procedural default will

not bar a federal habeas court from hearing a

substantial claim of ineffective assistance at trial if, in

the initial-review collateral proceeding, there was no

counsel or counsel in that proceeding was ineffective.

Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987) (“Neither the state court’s

failure to hold a hearing on petitioner’s 3.850 motion nor its failure to attach the

relevant portions of the record in any way undermines the validity of petitioner’s

conviction,” and thus “does not state a basis for habeas relief.”).

Id. at 17. To establish cause under Martinez, Petitioner must demonstrate that

the defaulted ineffective assistance of trial counsel claim “is a substantial one,

which is to say that [he] must demonstrate that the claim has some merit.” Id.

at 14; see also Lambrix v. Sec’y Fla. Dep’t of Corr., 851 F.3d 1158, 1164 (11th

Cir. 2017). A claim is not substantial if it lacks merit or is wholly without factual

support. See Martinez, 566 U.S. at 15-16.

First, insofar as Petitioner is raising a freestanding Giglio claim, his claim

is procedurally barred. Petitioner failed to raise such a claim in state court, and

the time in which to do so has now passed. He cannot show cause and prejudice

to excuse his procedural default, nor has he shown a fundamental miscarriage

of justice would result if the Court did not address his claim on the merits.9 As

such, any freestanding Giglio claim is procedurally defaulted and due to be

denied.

Second, as to Petitioner’s assertion that his counsel was ineffective for

failing to object to this allegedly false testimony, the Court finds the claim is

insubstantial. In arguing that Nimley provided a pre-trial statement indicating

that Nimley suggested they go outside, Petitioner cites to Officer Martin’s police

report. See Doc. 1-1 at 13-14. As noted by Respondents, however, this police

report is not in the record. See Response at 50 n.4 & n.5. The Court did locate a

9 The Martinez exception only applies to ineffective assistance of counsel claims.

pretrial affidavit for arrest warrant, in which the officer averred that “[t]he

victim [(Nimley)] stated that Arrington told him to ‘take this outside.’ Witnesses

at the store confirm the statement made by Arring[to]n.” Ex. A at 6 (emphasis

added). Thus, the record before the Court does not reflect any inconsistent

testimony from Nimley regarding who suggested they go outside.

Even assuming Nimley’s trial testimony differed from a pretrial

statement he made to police, such inconsistency could have been used as

impeachment, but would not have changed the outcome of the trial in light of

the entirety of the evidence presented. Moreover, during the state’s closing

argument, the prosecutor twice noted that Petitioner said to the victim, “Let’s

take this outside.” Ex. D at 713 (“Or did they leave after Mr. Arrington tells the

victim, Let’s take this outside?”), 724 (“When Mr. Arrington says, Let’s take this

outside . . . .”). In the defense’s closing argument, Petitioner’s counsel used the

discrepancy between Nimley’s and another witness’s testimony to show that the

state had presented inconsistent evidence. See id. at 754 (“Mr. Nimley says that

Mr. Arrington said, Let’s go outside. But if you remember back to Mr. Loizos,

he said that Mr. Nimley had the aggressive tone and he’s the one that said, Let’s

handle this outside. . . . But why is that important? . . . [I]t’s that you now have

inconsistent evidence.”). Then in rebuttal closing argument, the prosecutor said:

“I don’t care which one you want to believe, if Spicy said, Let’s go outside, or if

May[o] said, Let’s go outside, they went outside.” Id. at 775. The alleged

inconsistency simply was not material in light of the evidence presented, and

thus counsel’s failure to object did not rise to the level of ineffective assistance.

Nor has Petitioner shown he was prejudiced by counsel’s alleged

ineffectiveness. Thus, the underlying ineffective assistance of counsel claim

Petitioner raises is not substantial, and Ground Three is due to be denied.

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.10

10 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.

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 30% day of

January, 2024.

Ww. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 1/21

C:

Lamonte Charles Arrington, #J55940

Counsel of Record

3l