# Grace v. Secretary, Department of Corrections (Polk County)

> District Court, M.D. Florida · February 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10115132

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

WESLEY THOMAS GRACE,

Petitioner,

v. Case No. 8:21-cv-621-MSS-AEP

SECRETARY, DEPARTMENT
OF CORRECTIONS,

Respondent.
____________________________________/

O R D E R

Grace petitions for a writ of habeas corpus under 28 U.S.C. § 2254 and challenges his
state court convictions for armed burglary with assault or battery, aggravated assault, and
tampering with a witness. (Doc. 1 at 1) After reviewing the petition (Doc. 1), the response
(Doc. 5), and the relevant state court record (Doc. 5-1), the Court DENIES the petition.
PROCEDURAL HISTORY
A jury found Grace guilty of armed burglary of a dwelling with assault, two counts of
aggravated assault, and tampering with a witness. (Doc. 5-2 at 323–25) The trial court
sentenced Grace as a prison releasee reoffender to life in prison for the burglary conviction,
a concurrent thirty years for the tampering conviction, and concurrent five years for the
aggravated assault convictions. (Doc. 5-2 at 364–67) Grace appealed, and the state appellate
court affirmed. (Doc. 5-2 at 371) Grace moved for post-conviction relief (Doc. 5-2 at 429–40),
the post-conviction court denied relief (Doc. 5-2 at 516–17), and the state appellate court
affirmed. (Doc. 5-2 at 579) Grace’s federal petition follows.
FACTS
On June 12, 2016, at 2:00 P.M., Grace knocked on the front door of the home
belonging to James and Michelle Young. (Doc. 5-2 at 165–66) James answered and observed
Grace dressed in black clothing and wearing a motorcycle helmet and flip-flops. (Doc. 5-2 at

166–67, 185) Grace told James, “I want my sh*t,” and James responded that Grace came to
the wrong house. (Doc. 5-2 at 168) Grace clarified that he wanted his four-wheeler and
believed that James hid the four-wheeler in a shed in the backyard. (Doc. 5-2 at 168–69) James
walked outside and showed Grace that the shed in the backyard was too small to store a
four-wheeler. (Doc. 5-2 at 169) When Grace told James that he planned to go into the
backyard, James warned Grace that his two bulldogs would bite Grace. (Doc. 5-2 at 170)
After Grace replied that he would kill the dogs, James became upset, returned inside, and told
Michelle to call the police. (Doc. 5-2 at 170)
Grace followed James through the front door. (Doc. 5-2 at 170–71) James told Grace

to leave, Michelle who was inside pushed Grace, and Grace brandished a knife. (Doc. 5-2 at
171–72, 187) Grace swung the knife near James’s face and caused James to fall to the ground.
(Doc. 5-2 at 172, 186–87) James repeatedly told Michelle to call the police, and Grace
knocked the telephone out of Michelle’s hands. (Doc. 5-2 at 173, 186–88) Michelle grabbed
the telephone from the floor, and Grace brandished the knife in her face and threatened,
“Don’t make me motherf*cking kill you.” (Doc. 5-2 at 188–89) James and Michelle ran out
to the backyard. (Doc. 5-2 at 174, 189) Grace followed, and the bulldogs attacked Grace.
(Doc. 5-2 at 174, 190) Grace returned inside, locked the back door, tapped his knife on the
window, threatened to “cut” James, and left through the front door. (Doc. 5-2 at 174–75)
That afternoon, a neighbor, who had known Grace for about ten years, unexpectedly
saw Grace dressed in black clothing and wearing a motorcycle helmet and flip-flops. (Doc.
5-2 at 199–200, 205) Grace asked the neighbor to drive him to Auburndale. (Doc. 5-2 at 201)
During the car ride, Grace told the neighbor that he had confronted a person who had stolen

his four-wheeler and had tried to enter the person’s backyard, but the person did not allow
him to enter. (Doc. 5-2 at 201–03)
Two weeks later, a detective interrogated Grace about the burglary. (Doc. 5-2 at 153)
After waiving his constitutional rights, Grace told the detective that he did not know anything
about the burglary and denied knowing the neighbor. (Doc. 5-2 at 157) The detective showed
James and Michelle a photographic lineup that contained a photograph of Grace. (Doc. 5-2
at 158–59) The detective testified that neither James nor Michelle could identify a suspect.
(Doc. 5-2 at 159, 254) Both James and Michelle testified that they did identify Grace in the
photographic lineup, and both identified Grace in court as the burglar. (Doc. 5-2 at 176, 178,
191–92, 195) Michelle testified that, after identifying Grace in the photographic lineup, she

and James learned Grace’s name and “looked him up, [ ] to see who he was, and [they] knew
that’s who it was.” (Doc. 5-2 at 194)
STANDARDS OF REVIEW
AEDPA
Because Grace filed his federal petition after the enactment of the Antiterrorism and
Effective Death Penalty Act, AEDPA governs his claims. Lindh v. Murphy, 521 U.S. 320,
327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim —

(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.

A decision is “contrary to” clearly established federal law “if the state court arrives
at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law
or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000).
A decision involves an unreasonable application of clearly established federal law “if the
state court identifies the correct governing legal principle from [the U.S. Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Williams, 529 U.S. at 413. Clearly established federal law refers to the holding of an opinion
by the U.S. Supreme Court at the time of the relevant state court decision. Williams, 529
U.S. at 412.
“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner
applications in order 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). A federal petitioner must show that the state court’s ruling was “so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103
(2011).
Ineffective Assistance of Counsel
Grace asserts ineffective assistance of counsel — a difficult claim to sustain.

Strickland v. Washington, 466 U.S. 668, 687 (1984), explains:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.

“There is no reason for a court . . . to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[A] court
deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Strickland, 466 U.S. at 690.
“An error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Strickland, 466 U.S. at 691. To demonstrate prejudice, the defendant must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. A reasonable probability
is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694.
Strickland cautions that “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at
690–91. A defendant cannot meet his burden by showing that the avenue chosen by counsel
was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992).

Because the standards under Strickland and AEDPA are both highly deferential,
“when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105. “Given the
double deference due, it is a ‘rare case in which an ineffective assistance of counsel claim
that was denied on the merits in state court is found to merit relief in a federal habeas
proceeding.’” Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019)
(citation omitted).
In a decision without a written opinion, the state appellate court affirmed the order
denying Grace post-conviction relief. (Doc. 5-2 at 579) A federal court “‘look[s] through’
the unexplained decision to the last related state-court decision that does provide a relevant

rationale [and] presume[s] that the unexplained decision adopted the same reasoning.”
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). Because the post-conviction court provided
reasons for denying Grace’s claims in a written order (Doc. 5-2 at 516–17), this Court
evaluates those reasons under Section 2254(d).
Exhaustion and Procedural Default
A petitioner must exhaust the remedies available in state court before
a federal court can grant relief on habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner must
(1) alert the state court to the federal nature of his claim and (2) give the state court one full
opportunity to resolve the federal claim by invoking one complete round of the state’s

established appellate review process. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard
v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review
and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A federal court may stay — or dismiss without prejudice — a habeas case to allow a
petitioner to return to state court to exhaust a claim. Rhines v. Weber, 544 U.S. 269 (2005);

Rose v. Lundy, 455 U.S. 509 (1982). If the state court would deny the claim on a state
procedural ground, the federal court denies the claim as procedurally defaulted. Snowden v.
Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722,
735 n.1 (1991)). Also, “a state court’s rejection of a federal constitutional claim on
procedural grounds will [ ] preclude federal review if the state procedural ruling rests upon
[an] ‘independent and adequate’ state ground.” Judd v. Haley, 250 F.3d 1308, 1313 (11th
Cir. 2001) (citing Coleman, 501 U.S. at 729–30).
To excuse a procedural default on federal habeas, a petitioner must demonstrate
either (1) cause for the default and actual prejudice from the alleged violation of federal law

or (2) a miscarriage of justice. Maples v. Thomas, 565 U.S. 266, 280 (2012); House v. Bell, 547
U.S. 518, 536–37 (2006).
ANALYSIS
Ground One
Grace asserts that trial counsel deficiently performed by failing to present at trial
testimony by Deputy Jacob Durrance. (Doc. 1 at 3–4) Grace contends that the deputy would
have testified that James Young told the deputy that he invited Grace into the home. (Doc.
1 at 4) The post-conviction court denied the claim as follows (Doc. 5-2 at 516):
Defendant argues that trial counsel was ineffective for failing to
investigate Deputy Durrance. The State responds that Deputy
Durrance was a known witness and was set for deposition. The
State further argues that Defendant has not identified how the
conversation between Mr. Young and Deputy Durrance was
known to Defendant and has included no attachment. The State
also argues that the testimony would not have changed the
outcome at trial as Mr. Young testified that he repeatedly tried
to push Defendant out of his residence and permission to enter,
if it had been given originally, would have been revoked when
Defendant brandished a knife. . . . After review of the State’s
arguments, citations, and attachments to its Response, adopted
and incorporated herein, the Court agrees.

The prosecutor presented the following argument in the response to Grace’s motion
for post-conviction relief (Doc. 5-2 at 464–70) (state court record citations omitted):
Defendant’s first assignment of error is that trial counsel
performed deficiently within Strickland by failing to investigate
and call Deputy Durrance as a witness. In Defendant’s
amended motion for post-conviction relief, Defendant states
explicitly that had Deputy Jacob B. Durrance been called to
testify on Defendant’s behalf, he would have testified that Mr.
Young told the deputy that he gave Defendant permission to
enter the house. Both the record and Defendant’s own motion
refutes this claim as to both performance and prejudice.
Defendant’s claim should be denied without a hearing.

Deputy Jacob Durrance was not called to testify at the trial. He
is mentioned in a Notice of Taking Deposition filed by
Assistant Public Defender Candice Zeigler as a scheduled
deponent on October 5, 2016. Defendant states that potential
witness Durrance was listed as a Category A witness. Thus,
between the court file and Defendant’s own motion, Deputy
Durrance was known to defense counsel and set for deposition.
This is hardly the lack of investigation that Defendant suggests
in his motion. Obviously, trial counsel cannot be deficient if
prior appointed counsel conducted a deposition of this witness
and Defendant states no reason why trial counsel should have
filed a motion to depose Deputy Durrance a second time.

Further, Defendant states that “[d]uring an initial sworn and
recorded interview James Young unequivocally states to
Deputy Jacob B. Durrance that permission to enter the building
was given to the defendant.” Defendant makes this claim
without any attachment to his motion.3 The Court is unable to
consider whether this is based on a transcript of a recorded
interview (as Defendant claims), a deposition transcript, a
police report, or if Defendant somehow had personal
knowledge of a conversation between two complete strangers.
For his claim to support the idea that trial counsel failed to
investigate a witness’s potential testimony, Defendant should
not be allowed to swear as true something without an
attachment or explain how he personally knows it to be
accurate information. Defendant makes no citation and
includes no attachment to suggest that James Young ever made
this statement (the complete opposite of his trial testimony) or
that Deputy Durrance ever heard this statement.

3 Defendant filed a Third Amended Motion for
Post-conviction Relief and Motion to Strike
Motion which was sent on October 18, 2019.
This Third Amended Motion includes an
“Attachment A” which appears to be an attached
police report from Jacob Durrance[.] [H]owever,
the scanned copy in the Court file is illegible.

Essentially, without this information, Defendant has not put
forth a good faith claim, and the motion should be considered
to be insufficient. For the same reasons that a motion filed
under Fla. R. Crim. P. 3.850 must be sworn to, the motion must
also provide the State and the Court notice of how the claim
would be substantiated. In its original order dismissing
Defendant’s Motion for Post-conviction Relief, the Court
allowed Defendant an extra sixty days to submit a facially
sufficient motion. Without the appropriate attachment,
Defendant has not yet filed a sufficient motion. Once the
defendant has been given the opportunity to amend a facially
insufficient claim, the final order on the motion is a disposition
on the merits of all claims, even if the defendant’s attempt to
amend the claim results in another insufficiently pleaded
ground for relief. Verity v. State, 56 So. 3d 77, 78 (Fla. 2d DCA
2011) (quoting Lawrence v. State, 987 So. 2d 157, 159 (Fla. 2d
DCA 2008)).

“[A] Florida state court’s dismissal of a post-conviction claim for facial insufficiency
constitutes [ ] a ruling ‘on the merits’ that is not barred from [federal habeas] review.” Pope
v. Sec’y, Dep’t Corrs., 680 F.3d 1271, 1286 (11th Cir. 2012). Daniel v. Comm’r, Ala. Dep’t Corrs.,
822 F.3d 1248, 1260 (11th Cir. 2016) (“Summary dismissals [ ] are adjudications on the
merits and subject to AEDPA review.”).
In the post-conviction motion, Grace contended that Deputy Durrance would have
testified that, during an interview, James stated that he gave Grace permission to enter the
home. (Doc. 5-2 at 432) “[Strickland’s prejudice] burden is particularly ‘heavy where the
petitioner alleges ineffective assistance in failing to call a witness because often allegations

of what a witness would have testified to are largely speculative.’” McKiver v. Sec’y, Fla. Dep’t
Corrs., 991 F.3d 1357, 1365 (11th Cir. 2021) (quoting Sullivan v. DeLoach, 459 F.3d 1097,
1109 (11th Cir. 2006)). “[F]or that reason, [the Eleventh Circuit has] held that a petitioner’s
own assertions about whether and how a witness would have testified are usually not
enough to establish prejudice from the failure to interview or call that witness.” McKiver,
991 F.3d at 1365.
Grace attached a police report to his post-conviction motion to demonstrate that
Deputy Durrance would testify in the manner that he contended. The post-conviction court
adopted the prosecutor’s response, which stated that the copy of the police report in the state

court clerk’s file was illegible. (Doc. 5-2 at 465 n.3) This Court takes judicial notice of the
state court clerk’s file and determines that the copy of the police report is not illegible.1 The
police report states the following facts (bolding added):
On June 12, 2016, I responded to 116 Temple Street, Winter
Haven, in reference to an alleged burglary that had just
occurred. Sergeant Daniel #5185 was the first unit on scene and
I soon arrived as second. I met with James Young, Sr., and
Michelle Young (victims) at the intersection of Thornhill Road
and Temple Street. Sergeant Daniel directed me to complete a
second interview with them in regards to the incident. I spoke
with James first who advised me an unknown male subject
came to his residence and knocked on the front door. James
opened the door and asked what the subject wanted. James

1 See Motion to Strike Prior Amended Motion and Amended Motion for Post-Conviction
Relief, State v. Grace, No. 16-CF-5202 (Fla. 10th Jud. Cir. Oct. 24, 2019), available at https://
pro.polkcountyclerk.net/PRO.
noted the male was white, tall, wore a black motorcycle helmet,
and had scruffy facial hair. James did not recognize the subject.
James told me the subject was yelling and stated he wanted his
four-wheeler back. James told the subject he didn’t know what
he was talking about. The subject told James he wanted to look
in the backyard for the four-wheeler.

James told me he opened up the front door and led the subject
through the house to the back door. I specifically asked James
if he allowed the subject inside of the home or if the subject
forced his way inside. James again stated he allowed the
subject inside. James told the subject he needed to put his dog
away. James told me the subject the pulled a large knife from
his waistband and stated he would kill the dog. James advised
me he then told the subject to leave or he would call the police.
James advised me that the subject then threatened to kill him
and James yelled at Michelle to call for the police. Michelle got
her cell phone to call law enforcement but the subject hit the
phone out of her hands before fleeing the residence. I then asked
questions relative to where the subject fled in order to assist K9
Deputy Billo with his track. I did not conduct a detailed
interview with Michelle.

I then assisted K9 Deputy Billo with a track for the suspect.
I did not complete any further interviews or collect any
evidence. I had no further involvement in this case.

The post-conviction court unreasonably determined that the copy of the police report
in the state court clerk’s file was illegible. 28 U.S.C. § 2254(d)(2). Consequently, this Court
must review the claim de novo. Cooper v. Sec’y, Dep’t Corrs., 646 F.3d 1328, 1353 (11th Cir.
2011) (“‘[W]hen a state court’s adjudication of a habeas claim results in a decision that is
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding, this Court is not bound to defer to unreasonably-found facts or to
the legal conclusions that flow from them.’”).
Even under de novo review, Grace’s claim fails. At trial, James testified that he walked
Grace to the side of the home to show him that the four-wheeler was not parked in the
backyard. (Doc. 5-2 at 169) Even if trial counsel called Deputy Durrance to testify that
James told him that James invited Grace inside the home to show him that the four-wheeler
was not parked in the backyard, that prior inconsistent statement only impeaches James and
is not admissible for the truth of the matter asserted. § 90.608(1), Fla. Stat. Pearce v. State,
880 So. 2d 561, 569 (Fla. 2004) (“The theory of admissibility is not that the prior statement

is true and the in-court testimony is false, but that because the witness has not told the truth
in one of the statements, the jury should disbelieve both statements.”).
Even if the statement is admissible for the truth of the matter asserted, the statement
does not exculpate Grace. Even if James initially invited Grace inside the home, James
revoked the invitation after Grace brandished the knife and threatened to kill the dogs.
Because Grace brandished the knife in James’s and Michelle’s faces and threatened to kill
them both after James revoked the invitation, Grace committed a burglary with an assault,
despite the claimed initial invitation to enter the home. § 810.02(1)(b)(2)(b), Fla. Stat. (2016)
(“For offenses committed after July 1, 2001, ‘burglary’ means . . . [n]otwithstanding
a licensed or invited entry, remaining in a dwelling, structure, or conveyance [a]fter

permission to remain therein has been withdrawn, with the intent to commit an offense
therein . . . .”). State v. Herron, 70 So. 3d 705, 707 (Fla. 4th DCA 2011) (“[T]here is sufficient
evidence for a reasonable jury to find that Herron remained within Gonzalez’s apartment
with the intent to commit a battery. When entrance is licensed or invited, and such license
or invitation is proved, ‘a remaining in burglary’ may have occurred if permission to remain
in the dwelling was revoked.”).
Because James’s prior statement to the deputy does not exculpate Grace, trial
counsel did not deficiently perform by failing to call the deputy to testify, and Grace fails to
demonstrate a reasonable probability that the outcome at trial would have changed.
Consequently, the claim is meritless. Sullivan, 459 F.3d at 1109–11.
Ground One is DENIED.
Ground Two

Grace asserts that trial counsel deficiently performed by not objecting to comments
by the trial judge during voir dire that demonstrate that the trial judge departed from his
role as a neutral arbiter. He admits that he did not exhaust his remedies in state court but
asserts that Martinez v. Ryan, 566 U.S. 1 (2012), permits federal review of the procedurally
defaulted claim. (Doc. 1 at 10)
Under Martinez, 566 U.S. at 14, Grace must demonstrate (1) that either the
post-conviction court failed to appoint counsel or appointed counsel deficiently performed
by not raising the claim and (2) the claim is substantial or has “some merit.” Because Grace
fails to meet his heavy burden under Section 2254(e)(2)2 to excuse his failure to develop the

factual basis of the claim in state court, this Court “may not conduct an evidentiary hearing

2 If a petitioner fails to develop the factual basis of a claim in state court, Section 2254(e)(2)
bars a federal habeas court from holding an evidentiary hearing unless the petitioner
demonstrates that:
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme
Court, that was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
or otherwise consider evidence beyond the state-court record based on ineffective assistance
of state post-conviction counsel.” Shinn v. Ramirez, 596 U.S. 366, 382 (2022). Grace must
demonstrate deficient performance and prejudice under Strickland based on the state court
record. Shinn, 596 U.S. at 382.

Because the post-conviction court did not appoint Grace counsel (Doc. 5-2 at
516–17), Grace must demonstrate cause under Martinez. However, Grace fails to
demonstrate prejudice or that the claim has “some merit.” Martinez, 566 U.S. at 14.
During voir dire, trial counsel asked potential jurors whether the prosecutor must
introduce evidence of a weapon to prove guilt, and the trial judge interrupted for a sidebar
conference (Doc. 5-2 at 84–88):
[Trial counsel:] Did you hear what Mr. [L.] just said?
What about the weapon? It could be a
knife or weapon? Does anyone agree with
that? I mean, a part of the charges is a
weapon. Do we have the weapon? Is that
relevant, Mr. — Mr. [T.]?

[Juror T.:] Yeah, that would be relevant.

[Trial counsel:] Okay. What about if they don’t have the
weapon? Maybe you have a witness that
testified that there was a weapon that they
were holding in their hand. Is that just as
good? Ms. — Ms. [R.]?

[Juror R.:] Well, I would feel that if — like, if they say
that, then, you know that they had the
weapon, at least have proof, or, you know
— you caught me off guard.

[Trial counsel:] Sorry.

[Juror R.:] You’re all right. At least have it in
evidence, have the weapon in evidence. If
not, then it would kind of make my
opinion different towards that.
[Trial counsel:] Okay. That’s great. Anyone else —

[Trial court:] Hold on. Let me interrupt. Can I see
everybody?

[Sidebar conference]

[Trial court:] The defendant is present before the Court
with counsel at a sidebar conference. Do
you know why I called us over here?

[Trial counsel:] Yes.

[Trial court:] Why?

[Trial counsel:] Because I went too far into the evidence
and into the case itself.

[Trial court:] Yes. It’s really not appropriate to ask
jurors what it will take to convict or
acquit. That’s too specific. You can ask
about categories of evidence. For
example, “This case involves a knife. How
do you feel about a knife being alleged?
Maybe you can’t be fair because it
involves a knife.” But to ask them — to
ask them, “Well, if there was no knife, you
know, what are you going to do with
that?” is really —

[Trial counsel:] Okay.

[Trial court:] You need to rephrase your questioning.

[Trial counsel:] Can I just try to — let me state this on a
run-through before I go back out there, of
how I’m going to rephrase it.

[Trial court:] You can tie it in with evidence, lack of
evidence, conflict in the evidence.

[Trial counsel:] So pretty much I would ask, you know,
would that be — you know, whether they
had a knife or not, would that be
considered lack of evidence or a conflict of
evidence?

[Trial court:] Well, you can ask them to look at the
overall facts, but you can’t ask them to
commit —

[Trial counsel:] Right.

[Trial court:] — to whether they’re going to reach one
result or another, whether or not there was
a knife recovered.

[Trial counsel:] Okay.

[Trial court:] You see, I don’t know the facts of your
case, but you can’t —

[Trial counsel:] All right.

[Trial court:] You are going too far with that.

[Trial counsel:] Yes, sir.

[Trial court:] And you’re doing it kind of the wrong
way, so for that reason —

[Trial counsel:] Well, I don’t think —

[Trial court:] Because, obviously, these people are
responding — they don’t know how to
answer your question, because they don’t
know what the facts are.

[Trial counsel:] Right. I don’t really want them to answer
my question. I was just trying to get a
generalization on how they were thinking.
But I understand what you are saying.

[Trial court:] I’m not saying you can’t ask about that as
a category, just rephrase it.

[Trial counsel:] Okay.

[Trial court:] State, anything else?
[Prosecutor:] No, Your Honor.

[Trial counsel:] I think I’m going to close it.

[Trial court:] No. No. No. Do not take that as my
suggesting in any way.

[Trial counsel:] I know, but I don’t want to mess it up,
because I don’t want a mistrial or
anything.

[Trial court:] Well, you keep at it, just rephrase.

Grace contends that the trial judge departed from his role as a neutral arbiter because
the prosecutor did not object to trial counsel’s questions during voir dire, and the trial judge
instead interjected and sua sponte raised the issue. (Doc. 1 at 9–10) He further contends that,
if trial counsel had objected, the trial court would have permitted trial counsel to further
question Juror T. and Juror R., and trial counsel would have demonstrated that Juror T.
and Juror R. could not serve as jurors because of bias and an inability to follow the law.
(Doc. 1 at 9–10)
Williams v. State, 689 So. 2d 393, 396 (Fla. 3d DCA 1997), holds that a trial judge
may interject when an attorney improperly comments or questions a juror during voir dire:
[I]t is within the province of the court to interject itself, without
objection, albeit rarely, into voir dire examination concerning
counsel’s questions or comments. Brown v. State, 678 So. 2d
910, 913 (Fla. 4th DCA 1996). See Oglesby v. State, 23 So. 2d
558, 559 (Fla. 1945). The record in this case reveals that the
court sua sponte objected to a comment and a question by
defense counsel to the prospective jurors during voir dire. Those
actions, without more, do not demonstrate that the court
departed from its proper position of neutrality, where, as here,
the court properly exercised its authority without harshness or
repeated interjections. See Jackson v. State, 545 So. 2d 260, 264
(Fla. 1989); Pope v. Wainwright, 496 So. 2d at 802, and cited
cases. See generally Williams v. State, 143 So. 2d 484, 488 (Fla.
1962).
The trial judge was within his authority to address trial counsel’s improper
questioning of the jurors about anticipated evidence in the case. Thomany v. State, 252 So.
3d 256, 257 (Fla. 4th DCA 2018) (“[I]t appears counsel’s questions primarily were intended
to plant seeds in the jury’s mind about the defendant’s theory of the case, to be argued later

during trial. Such ‘pre-trying’ of the case is not the purpose of voir dire, nor is it an
appropriate use of the amount of time provided for voir dire.”). Moreover, the trial court
did so outside the presence of the venire.
Also, the trial judge did not repeatedly interject. Williams, 689 So. 2d at 396. After
admonishing trial counsel, the trial judge encouraged trial counsel to continue examining
the potential jurors, and trial counsel asked several more questions without interruption.
(Doc. 5-2 at 87–91) Because the trial court would have sustained an objection had the
prosecutor raised one and trial counsel could not have objected to the court’s admonishment
because the court was correct, trial counsel did not deficiently perform by conducting voir
dire as directed by the court at sidebar. Meders v. Warden, Ga. Diag. Prison, 911 F.3d 1335,

1354 (11th Cir. 2019) (“It is not ineffective assistance of counsel to fail to make an objection
that is not due to be sustained.”).
Grace speculates that, if trial counsel had objected, the trial court would have
permitted trial counsel to continue to question Juror T. and Juror R. about the lack of
evidence of a weapon. (Doc. 1 at 9) He speculates that further questioning would have
revealed that Juror T. and Juror R. could not serve as jurors because of bias and an inability
to follow the law. (Doc. 1 at 9) Because Grace cannot rely on speculation to demonstrate
prejudice under Strickland, his claim fails. Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir.
2002) (“‘[S]peculation is insufficient to carry the burden of a habeas corpus petitioner as to
what evidence could have been revealed by further investigation.’”) (citation omitted).
Because Grace fails to demonstrate that the claim has “some merit,” he fails to
demonstrate prejudice under Martinez to excuse the procedural default. Consequently, the

claim is procedurally barred on federal review.
Ground Two is DENIED.
Ground Three
Grace asserts that trial counsel deficiently performed by not objecting to testimony
by James Young that constituted hearsay. (Doc. 1 at 11–12) He admits that he did not
exhaust his remedies in state court but asserts that Martinez permits federal review of the
procedurally defaulted claim. (Doc. 1 at 12)
Grace contends that trial counsel should have objected to the following testimony by
James on cross-examination (Doc. 5-2 at 179–80) (bolding added):

[Trial counsel:] You also stated in a deposition that your
wife was shaking so bad, Michelle Young,
that she dropped the phone, correct?

[James:] I believe I did, yes, ma’am.

[Trial counsel:] But then previously, before, you said the
phone was knocked out of her hand,
correct?

[James:] Yes. After she told me that it was
knocked out. Everything happened so
fast.

Grace contends that trial counsel should have objected to James’s testimony
concerning his wife’s out-of-court statement. (Doc. 1 at 11–12) He contends that he did not
commit a burglary with an assault or battery if he did not knock the telephone out of
Michelle’s hand and that James improperly vouched for Michelle and bolstered her
testimony. (Doc. 1 at 11)
Because trial counsel impeached James with his prior inconsistent statement, trial
counsel opened the door to James’s explanation for why he made the prior inconsistent

statement. “‘As an evidentiary principle, the concept of opening the door allows the
admission of otherwise inadmissible testimony to qualify, explain, or limit testimony or
evidence previously admitted.’” Mantecon v. State, 373 So. 3d 929, 938 (Fla. 1st DCA 2023)
(citation omitted). “‘To those ends, courts have permitted the introduction of highly
prejudicial evidence that, absent a misleading representation, would not have been
admissible.’” Mantecon, 373 So. 3d at 938 (citation omitted). “The reliability of the otherwise
inadmissible evidence should be considered before allowing it in.” Mantecon, 373 So. 3d at
938.
James admitted that he previously stated both that Michelle dropped the telephone

and that the telephone was knocked out of her hand. (Doc. 5-2 at 179–80) At trial, Michelle
testified that Grace “smacked” her telephone out of her hand. (Doc. 5-2 at 108) Because
trial counsel opened the door to an explanation of why James made the prior inconsistent
statement, an objection based on hearsay would not have succeeded. Broomfield v. State, 82
So. 3d 1030, 1032 (Fla. 4th DCA 2011). Consequently, trial counsel did not deficiently
perform not objecting or not moving to strike James’s invited explanation. Meders, 911 F.3d
at 1354.
Also, the information charged Grace with assaulting and battering both James and
Michelle during the burglary. (Doc. 5-2 at 7) James testified that Grace entered the home
without permission, brandished the knife, swung the knife in James’s face, and threatened
to “cut” him. (Doc. 5-2 at 171–75) Michelle testified that Grace entered the home without
permission, brandished the knife, smacked the telephone out of her hand, swung the knife
in her face, and threatened her by stating, “[D]on’t make me [motherf*cking] kill you.”
(Doc. 5-2 at 186–90) Even if trial counsel successfully objected to the statement by James,

these additional credible threats of imminent harm supported the conviction for burglary
with assault or battery. § 784.011(1), Fla. Stat. (“An ‘assault’ is an intentional, unlawful
threat by word or act to do violence to the person of another, coupled with an apparent
ability to do so, and doing some act which creates a well-founded fear in such other person
that such violence is imminent.”). Consequently, Grace cannot demonstrate a reasonable
probability that the outcome would change if trial counsel had successfully objected.
Strickland, 466 U.S. at 694.
Because Grace fails to demonstrate that the claim has “some merit,” he fails to
demonstrate prejudice under Martinez to excuse the procedural default. Consequently, the
claim is procedurally barred on federal review.

Ground Three is DENIED.
Ground Four
Grace asserts that trial counsel deficiently performed by not filing a motion to dismiss
under Florida’s Stand Your Ground law. (Doc. 1 at 13–14) He admits that he did not
exhaust his remedies in state court but asserts that Martinez permits federal review of the
procedurally defaulted claim. (Doc. 1 at 14–15)
Grace contends that at an evidentiary hearing on a motion to dismiss he would prove
that he had a right to enter the home because James invited him into the home and that he

had a right to brandish the knife because Michelle pushed him without provocation inside
the home. (Doc. 1 at 13–14) He asserts that James’s and Michelle’s deposition testimony
and statements to police support both contentions. (Doc. 1 at 14)
Snow v. State, 352 So. 3d 529, 537 (Fla. 1st DCA 2022), summarizes Florida’s Stand
Your Ground law:

Florida law “confers immunity from prosecution if an
individual uses deadly force in accordance with section
776.012(2), Florida Statutes.” Fletcher, 273 So. 3d at 1189
(citing § 776.032(1), Fla. Stat.). “Section 776.012(2), allows an
individual to use or threaten to use deadly force ‘if he or she
reasonably believes that using or threatening to use such force
is necessary to prevent imminent death or great bodily harm to
himself or herself or another or to prevent the imminent
commission of a forcible felony.’” Id. (quoting § 776.012(2),
Fla. Stat.). “An individual has no duty to retreat and ‘has the
right to stand his or her ground,’ but only ‘if the person using
or threatening to use the deadly force is not engaged in a
criminal activity and is in a place where he or she has a right to
be.’” Id.

“At a hearing to determine whether a defendant is entitled to immunity, the
defendant must first present a prima facie claim of immunity, after which the burden of
proof shifts to the State to prove by clear and convincing evidence that the defendant is not
entitled to immunity.” Morris v. State, 325 So. 3d 1009, 1011 (Fla. 1st DCA 2021) (citing
§ 776.032(4), Fla. Stat.).
As explained above, even if James initially invited Grace into the home, James
revoked the invitation after Grace brandished the knife and threatened to kill James’s dogs.
§ 810.02(1)(b)(2)(b), Fla. Stat. (2016). Herron, 70 So. 3d 705, 707. Also, even if Michelle
pushed Grace, Michelle used non-deadly force. Because Michelle’s push could not have led
Grace to reasonably believe that he faced imminent death or great bodily harm, Grace did
not justifiably respond with a threat of deadly force by brandishing the knife. § 776.012(2),
Fla. Stat. (“A person is justified in using or threatening to use deadly force if he or she
reasonably believes that using or threatening to use such force is necessary to prevent
imminent death or great bodily harm to himself or herself or another or to prevent the
imminent commission of a forcible felony.”) (bolding added). Huckelby v. State, 313 So. 3d
861, 866 (Fla. 2d DCA 2021) (“‘The trial court must determine whether, based on the

circumstances as they appeared to the defendant, a reasonable and prudent person situated
in the same circumstances and knowing what the defendant knew would have used the same
force as did the defendant.’”) (citation omitted).
Because Grace did not have a right to remain in the home and did not lawfully
respond to Michelle’s push by brandishing the knife, a motion to dismiss based on Florida’s
Stand Your Ground law would not have succeeded. Consequently, trial counsel did not
deficiently perform, and Grace cannot demonstrate prejudice under Strickland. Strickland,
466 U.S. at 694; Meders, 911 F.3d at 1354.
Because Grace fails to demonstrate that the claim has “some merit,” he fails to

demonstrate prejudice under Martinez to excuse the procedural default. Consequently, the
claim is procedurally barred on federal review.
Ground Four is DENIED.
Ground Five
Grace asserts that trial counsel deficiently performed by misadvising him about his
right to testify. (Doc. 1 at 15–17) He admits that he did not exhaust his remedies in state
court but asserts that Martinez permits federal review of the procedurally defaulted claim.
(Doc. 1 at 17)
In his federal petition, Grace alleges that trial counsel misadvised him to not testify

as follows (Doc. 1 at 16):
Grace avers that he absolutely wanted to take the stand —
defense counsel advised Grace that she had chosen to pursue a
defense of lack of identification and conflicts in the evidence to
demonstrate reasonable doubt.

Grace simply wanted to testify and explain that, as Mr. Young
had previously stated, he was invited in and had no intent to
commit an offense. Ms. Young was the provoker, and Grace
simply took a defensive stance, after being shoved by Ms.
Young. Grace never took anything from the residence. Grace
left the residence once told — and once it became apparent by
the Youngs’ demeanor and actions that he was no longer
welcome.

Defense counsel advised Grace that if he were to testify in the
manner, albeit truthfully, it would be antagonistic to defense
counsel’s assertion that the State could not prove identity.
Ironically, both victims had already positively identified Grace
as the assailant. More ironically, though evidence was
introduced that the identification was tainted through the
victim’s independent research, no attempt was made by defense
counsel to suppress the identifications.

Defense counsel’s decision to pursue a futile defense deprived
Grace of his autonomy. Defense counsel’s strategy was
unreasonable, and Grace should have been advised to take the
stand and testify truthfully. [D]efense counsel never discussed
Grace’s testimony or his right to testify until the trial was at its
conclusion.

As explained above, because Grace fails to meet his heavy burden under Section
2254(e)(2) to excuse his failure to develop the factual basis of the claim in state court, this
Court “may not conduct an evidentiary hearing or otherwise consider evidence beyond the
state-court record based on ineffective assistance of state post-conviction counsel.” Shinn,
596 U.S. at 382. Grace must demonstrate deficient performance and prejudice under
Strickland based on the state court record. Shinn, 596 U.S. at 381–82. Because Grace fails to
demonstrate based on the state court record that trial counsel advised him in the manner
that he contends, his claim fails. Rogers v. Mays, 69 F.4th 381, 396 (6th Cir. 2023)
(“Generally, petitioners using Martinez may not rely on new evidence introduced in federal
court. That is because petitioners should bring and develop their claims in state court first.
If they do not, they bear the consequences, including strict limits on their ability to introduce
new evidence in federal court.”) (citing Shinn, 596 U.S. at 371–81).

During trial, the trial judge conducted a colloquy with Grace to determine whether
he knowingly and voluntarily waived his right to testify (Doc. 5-2 at 222–23):
[Trial judge:] All right. Sir, you’re still under oath. So,
let me pick up where I left off. The issue of
whether or not you are going to become a
witness and testify in this case is
something that I assume you would have
discussed with your attorney. Have you
done that?

[Grace:] Yes, Your Honor.

[Trial judge:] All right. And I don’t want to know what
you said to each other, but you have
discussed the issue?

[Grace:] Yes, Your Honor.

[Trial judge:] All right. Has your attorney given you her
advice with regard — without telling me
what it is, her advice with regard to
whether or not she thinks you ought to
testify?

[Grace:] Yes, Your Honor.

[Trial judge:] Have you considered her advice?

[Grace:] Yes, Your Honor.

[Trial judge:] Are you happy with her advice?

[Grace:] Yes, Your Honor.

[Trial judge:] All right. Now, do you understand, sir,
that regardless of what advice your
attorney gives you, it’s your trial and
ultimately your choice as to whether or
not you wish to become a witness and
testify? Did you understand that?

[Grace:] Yes, Your Honor.

[Trial judge:] All right. So, what have you decided you
want to do in this case, testify or not?

[Grace:] Not.

[Trial judge:] Not testify? Okay. Very good.

Because Grace stated under oath that he understood that he had the right to testify,
discussed his right to testify with trial counsel, was satisfied with trial counsel’s advice, and
understood that he could choose to testify even if trial counsel advised against that choice,
the colloquy refutes Grace’s claim.
Grace alleges that he would have testified that James invited him into the home and
that he brandished the knife to defend himself against Michelle’s push. (Doc. 1 at 16) He
contends that trial counsel advised him not to testify because his testimony would refute the
identity defense. (Doc. 1 at 16) As explained above, even if James initially invited Grace
into the home, James revoked the invitation after Grace brandished the knife and threatened
to kill James’s dogs. § 810.02(1)(b)(2)(b), Fla. Stat. (2016). Herron, 70 So. 3d 705, 707. Also,
Michelle’s use of non-deadly force did not authorize Grace to respond with a threat of
deadly force by brandishing the knife. § 776.012(1), (2), Fla. Stat. Huckelby, 313 So. 3d at
866. If Grace had testified that he entered the home and brandished the knife, he would
have both conceded his identity as the burglar and admitted guilt. Consequently, Grace
cannot demonstrate deficient performance and prejudice under Strickland. Strickland, 466
U.S. at 694. Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994) (“Even if many reasonable
lawyers would not have done as defense counsel did at trial, no relief can be granted on
ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances,
would have done so.”).
Because Grace fails to demonstrate that the claim has “some merit,” he fails to

demonstrate prejudice under Martinez to excuse the procedural default. Consequently, the
claim is procedurally barred on federal review.
Ground Five is DENIED.
Ground Six
Grace asserts that trial counsel deficiently performed by not moving to exclude James
Young’s and Michelle Young’s identification of Grace. (Doc. 1 at 19) He admits that he did
not exhaust his remedies in state court but asserts that Martinez permits federal review of the
procedurally defaulted claim. (Doc. 1 at 19–20)
At trial, James and Michelle testified that they identified Grace in a photographic

lineup presented by the detective. (Doc. 5-2 at 177–78, 192–93) The detective, who showed
the photographic lineup to James and Michelle, testified that neither identified Grace.
(Doc. 5-2 at 252–54)
During the defense case-in-chief, trial counsel called the detective to testify that
James and Michelle failed to identify Grace in the photographic lineup. (Doc. 5-2 at
252–54) During closing, trial counsel relied on the conflict in testimony to argue reasonable
doubt. (Doc. 5-2 at 269) After closing, the trial court instructed the jury to consider specific
factors when evaluating the reliability of a witness’s testimony and further instructed that
the prosecutor had the burden to prove the crimes beyond a reasonable doubt. (Doc. 5-2 at

291–92) Trial counsel apparently made a reasonable strategic decision by not moving to
suppress the identifications and instead calling the detective to impeach James and
Michelle. Trial counsel relied on that impeachment evidence to argue that James and
Michelle did not credibly identify Grace. Because Grace fails to demonstrate that no
reasonable counsel under these circumstances would have chosen this course of action, his

claim fails. Strickland, 466 U.S. at 690 (“[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.”); Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000)
(“[B]ecause counsel’s conduct is presumed reasonable, for a petitioner to show that the
conduct was unreasonable, a petitioner must establish that no competent counsel would
have taken the action that his counsel did take.”).
Even so, a motion to suppress the identifications would not have succeeded.
“‘[C]onvictions based on eyewitness identification at trial following a pretrial identification
by photograph will be set aside [ ] only if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable

misidentification.’” Neil v. Biggers, 409 U.S. 188, 196–97 (1972) (quoting Simmons v. United
States, 390 U.S. 377, 384 (1968)). “An identification infected by improper police influence
. . . is not automatically excluded. Instead, the trial judge must screen the evidence for
reliability pretrial.” Perry v. New Hampshire, 565 U.S. 228, 232 (2012).
Perry, 565 U.S. at 232–33, explains that federal due process bars the admission of an
identification tainted by a police officer’s use of an unnecessarily suggestive procedure:
Our decisions [ ] turn on the presence of state action and aim to
deter police from rigging identification procedures, for
example, at a line-up, show-up, or photograph array. When no
improper law enforcement activity is involved, we hold, it
suffices to test reliability through the rights and opportunities
generally designed for that purpose, notably, the presence of
counsel at post-indictment lineups, vigorous cross-
examination, protective rules of evidence, and jury instructions
on both the fallibility of eyewitness identification and the
requirement that guilt be proved beyond a reasonable doubt.

Grace does not assert that the detective used an unnecessarily suggestive procedure
when he showed the photographic lineup to James and Michelle. He instead contends that
trial counsel should have moved to suppress the identifications because testimony by James
and Michelle about their pretrial identification of Grace conflicted with the detective’s
testimony that neither identified Grace.
Because Grace does not assert that the detective tampered with procedures during
the photographic lineup to obtain an unreliable identification, a motion to suppress would
not have succeeded, and trial counsel did not deficiently perform. Perry, 565 U.S. at 232–
33.
Finally, even if trial counsel successfully suppressed the identifications, other
evidence proved Grace’s identity. James and Michelle testified that the burglar wore a black
long-sleeve shirt, black shorts, a black motorcycle helmet, and sandals. (Doc. 5-2 at 166–67,
185) A neighbor, who knew Grace for about ten years, testified that, on the same day and
around the same time of the crimes, Grace appeared at his front door wearing the same
clothing and same helmet. (Doc. 5-2 at 198–201, 203–05) Grace complained to the neighbor
that someone had stolen his four-wheeler. (Doc. 5-2 at 201–02) Grace told the neighbor that
he asked a person about the four-wheeler, and the person would not allow Grace to enter
the person’s backyard. (Doc. 5-2 at 203) The neighbor’s identification of Grace and Grace’s
statements to the neighbor, coupled with James’s and Michelle’s description of the burglar,
proved Grace’s identity as the burglar. Consequently, even if a motion to suppress the
identifications would have succeeded, Grace cannot demonstrate a reasonable probability
that the outcome at trial would change. Strickland, 466 U.S. at 694.
Because Grace fails to demonstrate that the claim has “some merit,” he fails to
demonstrate prejudice under Martinez to excuse the procedural default. Consequently, the
claim is procedurally barred on federal review.
Ground Six is DENIED.
Ground Seven
Grace asserts that the cumulative effect of trial counsel’s deficient performance
demonstrates prejudice and entitles him to relief. (Doc. 1 at 21) Because no series of errors
exists to accumulate, the cumulative error claim is meritless. Morris v. Sec’y, Dep’t Corrs.,
677 F.3d 1117, 1132 (11th Cir. 2012).
Ground Seven is DENIED.
Accordingly, Grace’s petition (Doc. 1) is DENIED. The Clerk is DIRECTED to
enter a judgment against Grace and CLOSE this case.
DENIAL OF CERTIFICATE OF APPEALABILITY AND
LEAVE TO PROCEED IN FORMA PAUPERIS
Because Grace neither makes a substantial showing of the denial of a constitutional
right nor demonstrates that reasonable jurists would find debatable both the merits of the
underlying claims and the procedural issues that he seeks to raise, a certificate of
appealability and leave to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2).
Slack v. McDaniel, 529 U.S. 473, 478 (2000).
DONE AND ORDERED in Tampa, Florida on February 8, 2024.

fs hey bry —
MARYS SGRIVEN
UNITED STATES DISTRICT JUDGE

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10115132. Public record. Not legal advice.