Opinion

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

Court
District Court, M.D. Florida
Filed
Feb 23, 2024
Cited by
0 cases
Authority
More cited than 20.0%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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