approving and adopting Nelson hearings
How later courts described this case
- approving and adopting Nelson hearings
- “The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.”
- noting “that Boerckel applies to the state collateral review process as well as the direct appeal process.”
- “[A] court must not second- guess counsel’s strategy.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
COREY BRIGHT,
Petitioner,
v. Case No. 3:20-cv-1133-TJC-PDB
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Corey Bright, an inmate of the Florida penal system, initiated
this action by filing a pro se Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254. See Doc. 1. He is proceeding on an Amended Petition. See Doc.
4. Petitioner challenges a state court (Duval County, Florida) judgment and
conviction for aggravated assault with a deadly weapon and possession of a
firearm by a convicted felon. Petitioner is serving a cumulative twenty-three-
year term of incarceration. Respondents responded. See Doc. 11 (Resp.).1 The
Court gave Petitioner until April 25, 2022, to either file a reply or a notice that
1 Attached to the Response are various exhibits. The Court refers to the exhibits
as “Resp. Ex.”
he did not intend to file a reply. See Doc. 13. Petitioner did not file a notice or
reply by the deadline. Instead on October 16, 2023, Petitioner moved to amend
his Amended Petition, which is still pending before the Court and addressed
herein. See Doc. 15. Thus, this case is ripe for review.2
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)).
2 “In a habeas corpus proceeding, the burden is on the petitioner to establish
the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,
1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060
(11th Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court
must consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the
record refutes the applicant’s factual allegations or otherwise precludes habeas relief,
a district court is not required to hold an evidentiary hearing.” Id. The Court finds that
“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.
2
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
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),
3
(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. §
4
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).
5
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,[3] supra, at 747–
748, 111 S. Ct. 2546; Sykes,[4] 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.
3 Coleman v. Thompson, 501 U.S. 722 (1991).
4 Wainwright v. Sykes, 433 U.S. 72 (1977).
6
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).[5] Under the prejudice
prong, [a petitioner] must show that “the errors at trial
actually and substantially disadvantaged his defense
so that he was denied fundamental fairness.” Id. at
1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
Without a showing of cause and prejudice, a petitioner may receive
consideration on the merits of a procedurally defaulted claim if the petitioner
can establish that a fundamental miscarriage of justice, the continued
incarceration of one who is actually innocent, otherwise would result. The
Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive
consideration on the merits of his procedurally
defaulted claim. “[I]n an extraordinary case, where a
5 Murray v. Carrier, 477 U.S. 478 (1986).
7
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.
8
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.
The two-part Strickland test applies to challenges to the validity of guilty
pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,
58 (1985). The petitioner must still show that counsel’s performance was
deficient. See id. at 56-59; Lynch v. Sec’y Fla. Dept. of Corr., 776 F.3d 1209,
1218 (11th Cir. 2015). To establish prejudice, however, the petitioner “must
show that there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.”
Hill,474 U.S. at 59 (footnote omitted); Lynch, 776 F.3d at 1218.
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
9
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).
10
III. Factual and Procedural History
The facts of the case are taken from Petitioner’s initial brief filed on
direct appeal. Resp. Ex. H.
The State called Shirae Bryant. The decedent was her
boyfriend and the father of her child. They lived as a
family in Moncrief Village on July 24, 2012, the date of
the shooting. She confirmed that the decedent
domestically abused her. Due to an “altercation” over
the weekend, the landlord requested that the family
leave the apartment complex.
Ms. Bryant called her cousin, Cereissa Webb, and
informed her of her situation. While discussing the
situation, Ms. Webb told Ms. Bryant that her brother
and Ms. Bryant’s cousin, Richard Person, needed to
come speak with the couple. Later that afternoon,
Richard Person came to her apartment. He asked how
Ms. Bryant was doing and inquired about the decedent,
but he was not home. At that time, Mr. Person was with
a tall, heavy-set, bald, light-skinned, black male, later
to be known as Miles McChriston.
Later that same evening Mr. Person called Ms. Bryant,
but she did not answer. She then heard a person
knocking on her door, which grew louder. When she
answered the door, “Miles and Corey” were present.
One of the guys that came to the door asked if she was
okay, and told her that Mr. Person wanted to speak
with her. Though Mr. Person drives a vehicle, he has
an amputated leg and remained in the car.
When she arrived at the car, Mr. Person asked whether
the decedent was in the apartment; to which Ms.
Bryant responded “yeah.” The two cousins then had a
normal conversation. The decedent then walked over
from the apartment to where Mr. Person and Ms.
Bryant were speaking. Upon seeing the decedent Mr.
11
Person “flipped” and asked “why you put your hands on
my cousin?” The decedent stated it was just an
altercation; nothing major. He was not threatening to
Mr. Person in any manner and was not armed with a
weapon.
Three men accompanied Mr. Person. Ms. Bryant did
not see any weapons on the four men. Mr. Person asked
the decedent again why he put his hands on Ms. Bryant
and the decedent again said it was merely an
altercation. The decedent then turned to walk away;
Mr. Person told Ms. Bryant to move. Mr. Person
reached under the seat, grabbed a gun, and “everybody
started shooting.” Ms. Bryant observed the gun in Mr.
Person’s hand. The other three men did not “go for a
gun” and Ms. Bryant believed the guns to be on their
persons. The decedent turned, screamed, and
eventually fell to the ground. The four men then
jumped into the car and drove away.
Ultimately, Ms. Bryant spoke to law enforcement and
identified the additional three suspects via
photospread as “Miles[,”] another as “Ms. Webb’s
boyfriend[,”] and Mr. Bright as “one of the guys
standing with Richard at the time of the shooting” who
also “tried to talk to me.” She testified that Mr. Bright
fired his gun that evening. Ms. Bryant further testified
that when the decedent walked away he appeared to be
going straight and not towards their apartment. She
explained that all of the shootings occurred at once; no
long break occurred.
On cross-examination Ms. Bryant stated that Mr.
Person did not seem mad when she spoke to him earlier
in the day. She confirmed that Mr. Bright was the one
that spoke with her when she opened the door and was
“flirting” with her. She further confirmed that Mr.
Bright did not appear mad or angry. Ms. Bryant
verified that it was only Mr. Person and the decedent
who were in a “heated conversation.”
12
Ms. Bryant explained that when Mr. Person told her to
move out of the way she observed the gun in his hand
and focused on his firearm. She observed flames come
from the front of the gun. She was in shock. She focused
on Mr. Person shooting. She heard other shots, but
could not testify who shot when. She confirmed that
some of the fired bullets went way past the decedent
and did not hit him. On re-direct Ms. Bryant confirmed
that she was not present in the car ride over to her
apartment or from her apartment after the shooting.
James Lawson Williams, IV, also known as “BJ” or
“Bossman[,”] an inmate at the Duval County Jail,
testified next. For his part in the decedent’s death Mr.
Williams pled to a reduced charge of second degree
murder. He testified he was facing 20 years to life
imprisonment. Mr. Williams knew Mr. Person as he
dated Person’s sister[,] Ms. Webb. He knew Miles
McChriston and Mr. Bright, whom he identified in open
court, through Person as well. Mr. Williams testified
that McChriston, Person, and Mr. Bright were all
participants in the decedent’s murder.
On July 24, 2012, Mr. Williams was at Person’s
apartment when Ms. Webb received a phone call from
Ms. Bryant. Person got on the phone, spoke with Ms.
Bryant, and then left with Miles McChriston. Person
and McChriston later returned to the apartment with
Mr. Bright and “Maurice[.”] Neither Mr. Bright nor
Maurice were present earlier at the apartment.
Later in the evening the five men left Person’s
apartment to take Maurice home; Williams was the last
man to enter the car. Person was driving, McChriston
was in the passenger seat, Mr. Bright in [the] rear
driver’s seat, Maurice in the middle, and Mr. Williams
in the rear passenger seat. After dropping Maurice off
at his home, the four men proceeded to Moncrief
Village. Upon arrival, Mr. Bright and McChriston
exited the vehicle and knocked on Ms. Bryant’s door.
13
No words were spoken between the men before exiting.
Ms. Bryant exited her apartment and walked over to
speak with Person. The other two men stood for a while
longer near her apartment; ultimately returning to the
car.
Moments later the decedent exited the apartment and
approached Person; the two exchanged words.
Standing near the car Mr. Bright and McChriston had
their guns in hand at their side; Bright carrying a 9mm
and McChriston carrying a .45. According to Mr.
Williams, both men originally exited the car with their
weapons when they approached the apartment.
Williams testified that the decedent did not threaten
any of the four men and did not display a weapon. After
the exchange with Person the decedent began to walk
off between the two apartment buildings with his back
toward the men. When the decedent walked away,
Person retrieved his gun, yelled “what did [you] say[,”]
told Ms. Bryant to move, and fired his gun. Williams
saw the shot Person took strike the decedent. The
decedent made a sound and spun in a circle towards the
men. McChriston then fired his gun and the decedent
fell to the ground. Mr. Williams then let off a round and
Mr. Bright did as well. The decedent was already on the
ground when both Williams and Bright shot their guns.
Williams described it as a “heat of the moment type of
thing.”
After the shooting, the men got in the car and drove
back to Person’s apartment complex. Mr. Williams told
the men they were going to jail. He explained that he
believed the entire situation [was] “stupid” and further
expressed if they were going to kill him they should
have killed her too as she was going to notify the
authorities.
Upon returning to Person’s apartment[], McChriston
checked the car and retrieved a shell casing from
14
Person’s gun in the windshield area. He threw it in a
retention pond. Mr. Williams put his gun in a red bag
at the apartment and that was the last he saw of it.
On cross-examination Mr. Williams confirmed there
was no conversation on the way to Moncrief Village
about killing the decedent; stating he believed they
were merely dropping Maurice home. Williams was in
shock when the shooting began; but remembered that
Person shot first – only once; then McChriston – several
times with a .45, the decedent fell to the ground; there
was a split second pause, and then Williams fired his
gun – only once in order to provide the men time to get
back in the car and avoid fire from other potentials in
the high-crime apartment complex; and then Mr.
Bright fired one time.
Mr. Bright did not walk up and shoot the decedent.
Much like Mr. Williams, Mr. Bright fired a round, not
aiming at the decedent, attempting to get out of the
area.
On re-direct Mr. Williams confirmed that there was a
time that day when Person, McChriston, and Bright
were together when he was not present. He had no idea
what the men may or may not have discussed at that
time. Williams confirmed that McChriston and Mr.
Bright got out of the car with their guns when they
reached Moncrief Village without any discussion.
Ms. Cereissa Webb testified. She confirmed her
relationships and knowledge of the four men and Ms.
Bryant. She confirmed receiving a call from Ms. Bryant
regarding having troubles with her boyfriend. She
further confirmed that the four men later left Person’s
apartment with Maurice. They did not return until the
morning of July 25, 2012.
Officer Derek Gianakas of the Jacksonville Sheriff’s
Office also testified. He reported to the scene and
15
observed a person lying on the sidewalk. He canvassed
the area, found five bullets, and a stray bullet that
entered Apartment 4651.
Captain Christopher Woods, a paramedic with the
Jacksonville Fire/Rescue Department also responded to
the scene . . . . Fire/rescue attempted to resuscitate the
decedent on scene and during transport to UF Health,
to no avail.
Detective Dziergoswki, an evidence technician with
Jacksonville Sheriff’s Office also testified. He served as
the lead crime scene technician, while Detective
Kolbyarz was also present. Detective Dziergoswki took
pictures on scene and collected five shell casings from
the area. He identified State’s Exhibit (“SE”) 52, 54,
and 51 as .45 casings and SE 55 as a 9mm casing. He
identified SE 58 as a projectile from within Apartment
4651.
Dr. Valerie Rao, the medical examiner for the Fourth
Circuit, performed the autopsy of the decedent, Antonio
Mosley. Dr. Rao testified that no gunshot wounds
entered the front of the decedent’s body. All gunshot
wounds entered from the back, and one grazed the right
buttock. She identified four entry wounds, A, B, C, and
D. She identified B as the fatal wound, but testified
that all of the wounds contributed to his death. She
collected projectiles from wounds A and B.
. . . .
Jacksonville Sheriff’s Office Homicide Detective Dennis
Sullivan also testified. He was the lead detective in this
case. Detective Sullivan reported to the Police
Memorial Building to interview Ms. Bryant. From this
interview he learned of Mr. Person and Ms. Webb,
whom he later interviewed. From these interviews he
gained the names of the other males present when Mr.
Mosley was killed – McChriston, Bright, and Williams.
16
He later interviewed Williams who admitted to being
present and firing a .380. Person provided the .380
firearm to detectives previously; however, no .45 or
9mm weapons were ever recovered.
Detective Sullivan obtained an arrest warrant for Mr.
Bright, whom was arrested on November 28, 2012. The
detective identified Mr. Bright in open court. He
interviewed Mr. Bright upon his arrest and this
interview was audio and video recorded. At the
inception of the interview, Mr. Bright admitted to being
present when Mr. Mosley was shot, but denied
possessing or discharging a firearm. Ultimately, Mr.
Bright admitted he shot a round in the direction of the
decedent but toward a building “so he wouldn’t be the
target of the codefendants.”
Mr. Bright explained on the way to Moncrief Village
Person said that he wanted to talk to Ms. Bryant and
the decedent; “he didn’t say he was going to do none of
that.” He admitted to flirting with Ms. Bryant on the
night in question. He ultimately admitted to possessing
a 9mm and discharging it one time. He explained he
fired after Mr. Mosley fell “basically to the ground” at
the wall of an apartment building. He believed he
might have hit the wall. When asked why he shot a
round, Mr. Bright explained he had no reason, that the
situation had nothing to do with him, and he basically
just began to shoot in the air.
On cross-examination, Detective Sullivan explained:
Mr. Bright “wanted to go along because [the
codefendants] were armed, and I don’t think he wanted
to subject himself to either their scrutiny or possibly
become a target for not going along.” The detective
confirmed that a 9mm bullet neither killed nor struck
Mr. Mosley. He further verified that a bullet was in fact
found in the wall of an apartment, but testified the type
of projectile was unknown.
17
The State then rested its case. The defense moved for a
judgment of acquittal as to the charge of first degree
murder. The State argued that it had proven a prima
facie case against Mr. Bright based upon his interview
and the testimony of trial witnesses. The trial court
asked “[u]nder the principal theory?” The State
responded that it had proven its case based upon not
only [the] principal theory, but also noted that the
defendant shot with the intent to kill.
The trial judge explained that the only evidence it
heard from the medical examiner was that the fatal
shot came from a .45[.] The State conceded it was
moving forward on the charge of first degree murder
based upon [the] “principal theory[.”] Defense counsel
argued that the evidence was insufficient to move
forward even on [the] principal theory as the only
evidence introduced was that “they got in the car and
they went over there.” Mr. Bright and McChriston
walked up to the apartment to get Ms. Bryant because
her cousin, Person, wanted to speak with her, but could
not walk up on his own due to his amputation. They
then return[ed] to the car. Defense counsel argued that
there was no evidence that Mr. Bright (or anyone else)
forced or enticed Mr. Mosley to exit the apartment.
Defense counsel explained that the State failed to prove
that a common plan existed; reiterating that Mr.
Mosley, after exiting the shower, came out to the car,
exchanged words with only Mr. Person, and Mr. Person
then fired his gun at the decedent.
The trial court explained that the following inferences
could be drawn from the State’s case: all four men
understand that the decedent is allegedly abusing Ms.
Bryant, they all go over to Moncrief Village armed to
intervene in some capacity, they all exit the vehicle
armed, that Mr. Bright exited the vehicle in order to
speak to Ms. Bryant. Though the trial court struggled
with an act of contribution toward the furtherance of
the charged crime by Mr. Bright, the State argued:
18
that [Mr. Bright] firing the gun at the
second the victim’s dropping down, not
knowing if the victim’s been fatally
wounded, victim’s still alive, that is a
contributing action. He’s just a member of
this four-person team that knows exactly
what they’re going to do when they park
the car. They all get out. They’re all acting
with a plan. They’re all acting under the
operation to commit this murder. He’s
firing in furtherance of that.
Ultimately, the trial court denied the motion for
judgment of acquittal stating “I agree and I’ll support
you in the inference with respect to the assist because
by firing a weapon, it’s a potential assist in helping
them exit the scene. It shows that he’s part of the
common plan.”
The Defense then rested its case.
. . . .
During a break from testimony, the trial court
conducted the charg[e] conference. The State prepared
the jury instructions, which included several
permissive lesser included offenses, one of which was
aggravated assault. Defense counsel advised the trial
court he had “no objection” to this lesser included
offense instruction.
The jury returned a verdict of guilty to the lesser
included offense of aggravated assault, specifically
finding that Mr. Bright actually possessed and
discharged a firearm. Mr. Bright entered a negotiated
plea of guilty to Count II – possession of a firearm by a
convicted felon. The sentence agreed upon was a
minimum-mandatory sentence of three years to run
consecutively to Count I aggravated assault. As to
Count I – the trial court adjudicated Mr. Bright guilty
19
and sentenced him to the mandatory minimum of 20
years.
Resp. Ex. H (record citations omitted).
IV. The Amended Petition
a. Ground One
Petitioner alleges his trial counsel was ineffective for waiving Petitioner’s
presence at pretrial status hearings and failing to properly prepare his case for
trial. Doc. 4 at 5. Petitioner asserts that after his December 3, 2012,
appointment as trial counsel, Charles Fletcher waived Petitioner’s appearance
at over fifteen pretrial hearings without Petitioner’s permission. Id. at 5.
According to Petitioner, in October 2013, Petitioner filed a pro se motion for a
Nelson6 hearing due to Mr. Fletcher’s failure to investigate his case and prepare
a proper defense, but the pro se motion was never addressed because trial
counsel prevented Petitioner’s appearance at pretrial hearings. Id. Petitioner
also seems to argue that the trial court erred in failing to ask about Petitioner’s
pro se motion requesting a Nelson hearing. Id.
Respondents argue that Petitioner’s ineffective assistance of trial counsel
claim is unexhausted because he did not present the issue to the state court.
Resp. at 20. They assert that during his direct appeal, Petitioner raised a claim
that the trial court erred in failing to conduct a Nelson inquiry; but in raising
6 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
20
that issue, Petitioner did not allege or suggest that his trial counsel was
ineffective for failing to ensure his presence at all his pretrial hearings or for
failing to investigate and prepare a proper defense. Id. They also contend
Petitioner did not later raise the ineffective assistance of trial counsel claim in
any postconviction motion filed with the state court. Id. Respondents do not
address the trial court error claim raised in Ground One.
i. Ineffective Assistance of Trial Counsel
The Court agrees that Petitioner did not exhaust the ineffective
assistance of trial counsel claim in Ground One. On direct appeal, Petitioner
raised a claim that the trial court committed reversible error in failing to
conduct a preliminary Nelson inquiry after Petitioner filed a pro se motion
requesting a Nelson hearing. Resp. Ex. H. While Petitioner mentioned
“someone” waiving his appearance at pretrial hearings and that the motion
asking for a Nelson hearing turned on trial counsel’s failure to investigate his
case, prepare a proper defense, and file pretrial motions, Petitioner’s claim on
direct appeal was one of trial court error and not one of ineffective assistance of
counsel.7 See Resp. Ex. H. To highlight this point, when addressing this issue
in its answer brief filed on direct appeal, the state considered the claim to be
7 As a separate claim raised on direct appeal, Petitioner did allege a claim of
ineffective assistance of trial counsel regarding trial counsel’s alleged failure to object
to the jury instructions. Resp. Ex. H. The Court addresses that claim in Ground Three.
21
one of trial court error about the trial court’s alleged failure to conduct a Nelson
inquiry in response to Petitioner’s pro se motion. Resp. Ex. I. As such, this
ineffective assistance of trial counsel claim is unexhausted and procedurally
barred. Petitioner fails to either show cause or prejudice from the default and
he has not shown a fundamental miscarriage of justice will result if the claim
is not addressed on the merits. Thus, this portion of Ground One is denied.
ii. Trial Court Error
To the extent that Petitioner claims the trial court failed to conduct a
Nelson hearing in response to his pro se motion, that claim is an issue of state
law and not cognizable on federal habeas review. In Nelson, Florida’s Fourth
District Court of Appeal held that if an indigent defendant expresses a desire
to discharge court-appointed counsel because of counsel’s ineffectiveness, the
trial court must hold a hearing to determine whether there is reasonable cause
to believe that the court-appointed counsel is not rendering effective assistance
to the defendant. Nelson, 274 So. 2d at 256; see also Glover v. State, 226 So. 3d
795, 807 (Fla. 2017) (discussing Nelson hearings); Hardwick v. State, 521 So.
2d 1071, 1074-75 (Fla. 1988) (approving and adopting Nelson hearings). If the
trial court finds that counsel is acting ineffectively, the trial judge will appoint
substitute counsel. Nelson, 274 So. 2d at 256.
22
The United States Supreme Court has not established a procedure for
when a represented indigent criminal defendant does not want to proceed pro
se, but instead wants another court-appointed lawyer because his current
lawyer is allegedly ineffective. See, e.g., United States v. Garey, 540 F.3d 1253,
1262-66 (11th Cir. 2008) (“Although the Sixth Amendment guarantees counsel,
it does not grant defendants the unqualified right to counsel of their choice. An
indigent criminal defendant ‘does not have a right to have a particular lawyer
represent him, nor to demand a different appointed lawyer except for good
cause.’” (quoting Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir. 1985)).
This Court will not reexamine state court determinations on issues of state law.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Since Petitioner’s claim
regarding a Nelson inquiry presents a state-law claim related to the trial court’s
failure to follow the procedures of a state law requirement, Petitioner has no
right to federal habeas relief on that claim, as there has been no breach of a
federal constitutional mandate. Ortiz v. McNeil, No. 3:09-cv-563-HWM-TEM,
2010 WL 4983599, at *5 (M.D. Fla. Dec. 2, 2010) (“Any complaint about the lack
of a proper Nelson inquiry raises an issue of state law that is not cognizable in
this proceeding.”). Thus, Ground One is due to be denied.
23
b. Ground Two
Petitioner argues that the trial court erred in denying his motion for
judgment of acquittal on the first degree murder charge because the state did
not present enough evidence that Petitioner committed the offense as a
principal. Doc. 4 at 7. According to Petitioner, his conviction for aggravated
assault must be vacated. Id. at 8.
After the state rested its case, Petitioner moved for a judgment of
acquittal. The trial court’s consideration of the motion is summarized in
Petitioner’s initial brief filed on direct appeal:
The trial court explained that the following inferences
could be drawn from the State’s case: all four men
understand that the decedent is allegedly abusing Ms.
Bryant, they all go over to Moncrief Village armed to
intervene in some capacity, they all exit the vehicle
armed, that Mr. Bright exited the vehicle in order to
speak to Ms. Bryant. Though the trial court struggled
with an act of contribution toward the furtherance of
the charged crime by Mr. Bright, the State argued:
that [Mr. Bright] firing the gun at the
second the victim’s dropping down, not
knowing if the victim’s been fatally
wounded, victim’s still alive, that is a
contributing action. He’s just a member of
this four-person team that knows exactly
what they’re going to do when they park
the car. They all get out. They’re all acting
with a plan. They’re all acting under the
operation to commit this murder. He’s
firing in furtherance of that.
24
Ultimately, the trial court denied the motion for
judgment of acquittal stating “I agree and I’ll support
you in the inference with respect to the assist because
by firing a weapon, it’s a potential assist in helping
them exit the scene. It shows that he’s part of the
common plan.”
Resp. Ex. H at 16-18 (record citations omitted).
Following the jury’s verdict, Petitioner, with help from counsel, argued on
direct appeal that the trial court erred in denying his motion for judgment of
acquittal. Resp. Ex. H at 22-33. In its answer brief, the state argued the
following in pertinent part:
As the State presented both direct and circumstantial
evidence in the case at bar, the special standard
[applicable to circumstantial evidence cases] is not
applicable and the State was not obligated to exclude
the defendant’s reasonable hypothesis of innocence.
In the case at bar, the victim’s girlfriend, Ms. Bryant,
testified that her cousin stopped by her home and asked
to speak to the victim but he was not home at that time.
During that brief visit she informed her cousin that
there were not any additional issues between her and
the victim as they were no longer going to be living
together. Later that same day, after the victim came
home, Ms. Bryant’s cousin called her phone but she
ignored it and then someone started knocking on her
door. Initially, Ms. Bryant ignored the knocking but
finally chose to answer the door as “they started
bamming [sic] on the door.” The men at the door asked
if she was alright and informed her that her cousin
wanted to speak to her.
While Ms. Bryant was speaking with her cousin outside
and informing him things were fine between her and
25
the victim, the victim joined them. The victim did not
have a weapon on him nor did he threaten Ms. Bryant’s
cousin. The victim insisted he and Ms. Bryant were fine
and then began to walk away. As he walked away, Ms.
Bryant’s cousin told her to move and then he “reached
under the seat and grabbed a gun and everybody just
star[t]ed shooting.”
After the victim was hit, he turned and started
screaming but the men kept shooting. Afterward, the
men “[j]umped in the car and drove off.” Ms. Bryant
later informed police of her cousin’s involvement and
identified the other three men involved from a photo
lineup. Ms. Bryant distinctly recalled Appellant as one
of the men who retrieved her from her apartment
before the shooting as he was “trying to flirt with [her].”
Ms. Bryant also testified Appellant fired his gun during
the shooting.
Immediately after the victim turned away, Ms.
Bryant’s cousin initiated the shooting, and the others
fired instantly after him, the shots occurred quickly
and “[i]t just -- all of it happened at once.” Though Ms.
Bryant identified Appellant as one of the shooters, it all
happened so quickly she did not note the order of how
they fired their weapons.
One of the codefendants, Mr. Williams, testified against
Appellant. Prior to the shooting, there was a time
period where the other defendants, including
Appellant, were together without Mr. Williams and he
was unaware of the topics they may have discussed.
That afternoon, Mr. Williams believed the group was
leaving his girlfriend’s apartment solely to drop off
another gentleman, but after doing so, the vehicle
turned into a different apartment complex.
Immediately upon arrival, Appellant and another man
got out of the vehicle while armed and knocked on Ms.
Bryant’s door. Mr. Williams noted Appellant did not
26
need to be told what to do, he simply took action upon
their arrival.
When Ms. Bryant did not immediately answer the door,
the men persisted until she did. While Ms. Bryant
spoke with her cousin, Appellant stood by with his gun
already in his hand. Though the victim was retreating
and was not a threat to the group, Ms. Bryant’s cousin
still shot him. After the victim was already on the
ground, Mr. Williams and Appellant finally fired shots,
in “the heat of the moment type of thing.”
Det. Sullivan testified Appellant was apprehended
November 28, 2012 and was subsequently interviewed.
The interview was recorded in its entirety. Prior to
asking questions, the detectives went over Appellant’s
constitutional rights and ensured he understood them.
Appellant indicated he understood his rights and was
willing to speak with the detectives. Though Appellant
initially denied any involvement in the actual shooting,
he later admitted he had fired his weapon but insisted
he did not hit the victim. Appellant was ultimately
charged with first degree murder and possession of a
firearm by a convicted felon. During trial, the taped
admission was played for the jury to hear. The jury
ultimately found Appellant guilty of aggravated
assault with the finding that he “actually possessed
and discharged a firearm during commission of the
offense.”
Though Appellant insists there was insufficient
evidence to establish a prima facie case of guilt for first
degree murder, the record clearly demonstrates
otherwise. The State presented two eye witnesses who
confirmed Appellant’s recorded admission that he did
indeed fire his weapon at the scene. Additionally, one
of the codefendants testified that he had not been privy
to earlier conversations in the day and that upon
arrival at the victim’s apartment complex, Appellant
exited the vehicle armed and knew to knock on Ms.
27
Bryant’s door until she answered; behaving in a
manner that suggested a pre-determined plan. Thus,
there was sufficient evidence for the first degree
murder charge to be a question for the jury.
Appellant relies upon C.P.P. v. State, 479 So. 2d 858, to
insist the State failed to prove a prima facie case. Yet,
in C.P.P., the State heavily relied upon the defendant’s
mere presence and flight from the scene of the offense.
Id. at 859. Whereas in the case at bar, it has already
been established the State did not solely rely upon
circumstantial evidence. Moreover, direct eye-witness
testimony and Appellant’s taped interview proved he
actively participated in the crime. Additionally,
evidence suggested Appellant was privy to a pre-
determined plan involving the victim. Thus, the State
clearly established a prima facie case of guilt for first
degree murder and the issue of guilt was a matter for
the jury to determine.
Ultimately, Appellant’s actions upon arrival at the
victim’s apartment complex suggested a pre-arranged
plan with some of the other defendants that resulted in
the death of the victim. Thus, as there was sufficient
evidence to support the question going before the jury,
this Court must affirm.
Resp. Ex. I at 8-12 (record citations omitted). The First DCA per curiam
affirmed Petitioner’s judgment and convictions without a written opinion. Resp.
Ex. K.
The Court addresses the claim in accordance with the deferential
standard for federal court review of state court adjudications. When reviewing
an insufficiency of the evidence claim in a habeas petition, a federal court must
determine “whether, after viewing the evidence in the light most favorable to
28
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979). The court must assume that the jury resolved any evidentiary
conflicts in favor of the prosecution, and the court must defer to that resolution.
Id. Here, the evidence supported the trial court’s denial of Petitioner’s motion
for judgment of acquittal as to the first degree murder charge. Eyewitness
testimony about Petitioner’s conduct and actions suggested a predetermined
plan to confront the victim such that it was reasonable for the trial court to
allow the first degree murder charge to go to the jury.
Thus, upon thorough review of the record and the applicable law, the
Court finds that the state court’s decision to deny Petitioner’s claim was neither
contrary to nor an unreasonable application of clearly established federal law,
and it was not based on an unreasonable determination of the facts given the
evidence presented to the state court. Ground Two is denied.
c. Ground Three
Petitioner alleges that his trial counsel was ineffective for failing to object
to the inclusion of the jury instruction for the permissive lesser included offense
of aggravated assault. Doc. 4 at 9-10.
Petitioner raised this claim in his Florida Rule of Criminal Procedure
29
3.850 motion filed in state court.8 Resp. Ex. N at 2. After conducting an
evidentiary hearing on the issue, the trial court denied the claim as follows:
Defendant alleges counsel was ineffective for failing to
object to the permissive lesser included offense of
aggravated assault. Defendant suggests a defendant
cannot be convicted of a lesser included offense where
the charging document does not charge one of the
essential elements of that lesser-included offense.
Defendant maintains his charging document did not
charge the essential element of fear required for an
aggravated assault conviction. In support of his claim,
Defendant cites Woodall v. State, 94 So. 3d 666, 669
(Fla. 5th DCA 2012).
On March 5, 2018, this Court ordered the State to
respond to this Ground. On September 27, 2017, this
Court issued a Second Order directing the State to
respond. The State filed its Response on April 18, 2018,
conceding the need for an evidentiary hearing, and on
July 25, 2018, this Court granted such a hearing. The
evidentiary hearing was held on October 10, 2018.
Defendant [ ] was present throughout the hearing and
appeared pro se. Assistant State Attorney London Kite
represented the State.
. . . .
“[W]hen an offense is not a necessarily lesser-included
offense of the charged offense that is, the offense is a
‘category 2’ or permissive lesser-included offense – the
trial court cannot convict the defendant of the lesser
8 Petitioner also raised this claim on direct appeal. Resp. Ex. H at 38. In its
answer brief, the state argued that the claim was not preserved for appellate review,
and as an alternative argument, it asserted the claim lacked merit. Resp. Ex. I at 17-
18. The First DCA per curiam affirmed Petitioner’s judgment and sentence without a
written opinion. Because it is unclear if the state appellate court considered the claim
on the merits, the Court discusses the claim by considering it in context of Petitioner’s
Rule 3.850 proceedings.
30
crime unless the allegations of the charging document
include the elements of that crime.” A.D. v. State, 15
So. 3d 831, 833 (Fla. 2d DCA 2009); Woodall, 94 So. 3d
at 669. In this case, Defendant’s charging Indictment
does not include an allegation regarding the element of
fear required for an aggravated assault conviction.
Defense counsel, however, did not object to the
inclusion of the lesser-included offense of aggravated
assault.
At the evidentiary hearing, the State presented the
testimony of trial counsel. Counsel indicated there was
not much defense to the charges considering
Defendant’s own statements to police admitting he was
not only at the scene of the crime, but also possessed
and discharged a firearm as well as the testimony of
one of his co-defendants that would mimic Defendant’s
statements. Therefore, trial counsel explained that he
strategically chose to request all the lesser included
offenses he could, despite the State’s objection, because
he was trying to get the jury to return a verdict of
anything less than First Degree Murder, as charged.
Counsel stated he would have went over all the lesser
included offenses with Defendant and remembers
talking to Defendant about the various arguments that
could be made. If convicted of First Degree Murder,
Defendant was facing a minimum mandatory sentence
of life and instead, the jury was able to return a verdict
for aggravated assault for which Defendant only
received a twenty-year minimum mandatory.
Counsel’s testimony reveals that counsel considered
alternative options and made a strategic choice to
include instructions on these lesser included offenses.
This Court finds that this decision was reasonable
considering the evidence against Defendant.
Accordingly, this Court finds counsel did not act
deficiently in requesting the instructions on the lesser
included offenses and Defendant is not entitled to
relief.
31
Resp. Ex. N at 138-42 (record citation omitted). Petitioner appealed the trial
court’s denial, and the First DCA per curiam affirmed the ruling without a
written opinion. Resp. Ex. Q.
The Court addresses the claim in accordance with the deferential
standard for federal court review of state court adjudications. Whether an
attorney’s actions derived from a strategic decision is an issue of fact, and the
state court’s decision on that issue is presumptively correct. Provenzano v.
Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998); see also Chandler v. United
States, 218 F.3d 1305, 1314, n.14 (11th Cir. 2000) (“[A] court must not second-
guess counsel’s strategy.”). Having chosen a reasonable defense strategy,
Petitioner’s counsel was not ineffective for requesting the inclusion of the
permissive lesser included offense of aggravated assault. Petitioner was facing
a charge of first degree murder that carried a mandatory life sentence. Trial
counsel testified that the evidence showed Petitioner was present during the
murder and participated in some form, which the jury may have ultimately
found was enough to show he acted as a principal to the murder. Thus, trial
counsel made a strategic decision, one he consulted Petitioner about, to include
the permissive lesser included offense of aggravated assault that carried a
twenty-year sentence. The jury ultimately found Petitioner guilty of that lesser
included offense, and consequently Petitioner avoided a life term of
32
incarceration. Given trial counsel’s testimony at the evidentiary hearing, the
Court finds no basis to challenge the state court’s decision that neither deficient
performance nor prejudice occurred under Strickland because of trial counsel’s
decision to request that instruction. As such, the state court’s adjudication of
this Strickland claim is neither contrary to nor an unreasonable application of
clearly established federal law. And the state court’s decision did not rely on an
unreasonable determination of the facts in light of the evidence presented in
the state court proceeding. Ground Three is denied.
d. Ground Four
Petitioner alleges that his trial counsel was ineffective for conceding
Petitioner’s guilt to the lesser included offense during opening statements. Doc.
4 at 12. He also asserts trial counsel was ineffective for failing to present the
viable defense that Petitioner lacked the specific intent to threaten, by word or
act, to do violence upon the victim, but instead acted out of duress and fear of
retaliation. Id.
Petitioner admits he did not exhaust these claims of ineffective assistance
of trial counsel but seeks to overcome this procedural default by relying on
Martinez v. Ryan, 566 U.S. 1 (2012), and seemingly argues that he can show
“cause” to excuse his default because he did not have counsel when he filed his
Rule 3.850 motion. Doc. 4 at 12.
33
Under Martinez, Petitioner must prove more than the general assertion
that the trial court did not appoint counsel in the initial-review collateral
proceeding. 566 U.S. at 14. Petitioner must “also demonstrate that the
underlying ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has some
merit.” Id. (citations omitted); see also Lambrix v. Sec’y Fla. Dept. of Corr., 851
F.3d 1158, 1164 (11th Cir. 2017). Conversely, his claim is “insubstantial” if “it
does not have any merit or . . . is wholly without factual support.” Id. at 16. For
the reasons that follow, the Court finds that even if Petitioner shows that his
lack of postconviction counsel caused his procedural default, he cannot show
that his underlying ineffective assistance of trial counsel claims are substantial.
Petitioner alleges his trial counsel was ineffective for conceding during
opening statements that Petitioner was guilty of “a lesser offense” and should
have instead pursued a viable defense that Petitioner’s actions stemmed from
duress or fear of retaliation from his co-defendants Doc. 4 at 12. During opening
statements, trial counsel summarized the evidence that would be presented
during trial. Resp. Ex. D at 218. He explained that the jury would watch
Petitioner’s police interview where he admitted to being present and in
possession of a firearm at the time of the murder. Id. at 218. But he also argued
that the evidence will show that despite that admission, Petitioner did not shoot
34
the victim, nor did he intend to kill anyone. Id. Trial counsel then explained to
the jury that Petitioner was facing a first degree murder charge but asserted –
“we will ask at the end of this case that you find him guilty of a lesser included
offense, something that he is responsible for, something that holds him
accountable for what he did and only what he did.” Resp. Ex. D at 219.
The evidence presented at trial showed that on the night of the murder,
Petitioner willingly traveled with the co-defendants to the victim’s home;
approached the victim’s door, so another co-defendant could confront the victim;
and knowingly possessed a firearm during these events. While the evidence may
suggest that Petitioner shot the firearm because he feared retaliation from the
other co-defendants, nothing suggests any of Petitioner’s other actions stemmed
from that alleged duress. Considering the evidence, especially Petitioner’s own
admissions made during his interrogation, trial counsel made a strategic
decision to pursue a defense that Petitioner’s conduct could not support a first
degree murder conviction, but established only a lesser included offense.
Contrary to Petitioner’s allegations, duress would not have been a viable
defense to all of Petitioner’s actions that day. Thus, because these claims are
insubstantial and lack merit, Petitioner cannot rely on Martinez to excuse the
procedural default here. Likewise, Petitioner has not shown that a failure to
consider these allegations on the merits will result in a fundamental
35
miscarriage of justice. Ground Four is denied.
V. Motion to Amend his Amended Petition
On October 16, 2023, Petitioner moved to amend his Amended Petition.
See Doc. 15. In the Motion, Petitioner alleges that “through diligent research,”
he has learned that his Amended Petition is not presented correctly and asks
that he be allowed to file a second amended petition. Id. at 1. But when seeking
leave to amend a habeas petition, a petitioner “should either set forth the
substance of the proposed amendment or attach a copy of the proposed
amendment.” See Cita Tr. Co. AG v. Fifth Third Bank, 879 F.3d 1151, 1157
(11th Cir. 2018) (citation and internal quotations omitted). Here, Petitioner has
not satisfied this requirement. Thus, his Motion to Amend (Doc. 15) is due to be
denied.
Accordingly, it is
ORDERED AND ADJUDGED:
1. The Amended Petition (Doc. 4) is DENIED, and this case is
DISMISSED WITH PREJUDICE.
2. Petitioner’s Motion to Amend (Doc. 15) is DENIED.
3. The Clerk shall enter judgment dismissing this case with
prejudice, terminate any pending motions, and close the file.
4. If Petitioner appeals this denial, the Court denies a certificate of
36
appealability. Because this 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.?
DONE AND ORDERED at Jacksonville, Florida, this 23rd day of
February, 2024.
□ Cirmotheg Corrig oN
W TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C: Corey Bright, #J10288
Counsel of record
9 The Court should issue a certificate of appealability only if the Petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this substantial showing, Petitioner “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were
‘adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Here, after consideration of the record as a whole, the Court will deny a certificate of
appealability.
37