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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DOUGLAS ELWOOD HAYNES,

Petitioner,

v. Case No. 3:20-cv-1296-MMH-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Douglas Elwood Haynes, an inmate of the Florida penal

system, initiated this action by filing a Petition for Writ of Habeas Corpus

under 28 U.S.C. § 2254 (Petition; Doc. 1).1 He proceeds on an Amended

Petition (Doc. 5). In the Amended Petition, Haynes challenges a 2012 state

court (Duval County, Florida) judgment of conviction for first-degree murder

and armed robbery. He raises two grounds for relief. See Amended Petition at

17-41. Respondents submitted a Response to the Amended Petition

(Response; Doc. 10). They also submitted exhibits. See Docs. 10-1 through 10-

1 For all pleadings and exhibits filed in this case, the Court cites to the

document and page numbers as assigned by the Court’s Electronic Case Filing

System.

23. Haynes filed a brief in reply (Reply; Doc. 11). This action is ripe for

review.

II. Relevant Procedural History

On July 28, 2011, a grand jury returned an indictment charging

Haynes with first-degree murder (Count 1) and armed robbery (Count 2). See

Doc. 10-1 at 2. At the conclusion of a trial, a jury found Haynes guilty of the

charged offenses. See Doc. 10-19 at 1-4. The court sentenced Haynes to terms

of life imprisonment on both counts on September 28, 2012. Id. at 5-10.

Haynes appealed, raising a single argument that the trial court abused its

discretion in denying Haynes’ requested independent act jury instruction. See

Doc. 10-7. The First District Court of Appeal (First DCA) per curiam affirmed

Haynes’ convictions and sentences on September 6, 2013, see Doc. 10-9 at 1,

and issued the mandate on September 24, 2013, id. at 2.

On December 6, 2014, Haynes, through counsel, filed a motion for

postconviction relief under Florida Rule of Criminal Procedure 3.850 (Rule

3.850 Motion). See Doc. 10-10. In his Rule 3.850 Motion, Haynes argued his

trial counsel was ineffective when she: (1) failed to request a Richardson2

hearing upon learning of a discovery violation; (2) failed to object to the

prosecutor’s improper remarks during closing arguments; and (3) misadvised

2 Richardson v. State, 246 So. 2d 771 (Fla. 1971).

Haynes regarding his right to testify.3 Id. at 14-25. Haynes also raised a

newly discovered evidence claim. Id. at 4-14. After holding an evidentiary

hearing on the Rule 3.850 Motion, the postconviction court denied relief. See

Doc. 10-18. The First DCA per curiam affirmed the denial of the Rule 3.850

Motion on October 29, 2020, and issued the mandate on November 19, 2020.

Doc. 10-23. Haynes filed the instant action under 28 U.S.C. § 2254 on

November 16, 2020. See Doc. 1.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period set

forth in 28 U.S.C. § 2244.

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See 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); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the

3 During the evidentiary hearing, Haynes withdrew the claim that his trial

counsel rendered ineffective assistance by misadvising him regarding his right to

testify. See Doc. 10-18 at 5.

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at

474. The pertinent facts of this case are fully developed in the record before

the Court. Because the Court can “adequately assess [Haynes’] claim[s]

without further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal petition for habeas corpus. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), abrogation recognized on other grounds by Smith v. Comm’r, Ala.

Dep’t of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023). “‘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)). As

such, federal habeas review of final state court decisions is “‘greatly

circumscribed’ and ‘highly deferential.’” Id. (internal quotation marks

omitted) (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)).

The first task of the federal habeas court is to identify the last state

court decision, if any, that adjudicated the claim 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 a written opinion explaining its rationale in order for the

state court’s decision to qualify as an adjudication on the merits. See

Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s

adjudication on the merits is unaccompanied by an explanation, the United

States Supreme Court has instructed:

[T]he 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.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision,

such as persuasive alternative grounds that were briefed or argued to the

higher court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d)

bars relitigation of the claim unless the state court’s decision (1) “was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States;” or

(2) “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);

Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited scope

of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v.

Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d

389 (2000), § 2254(d)(1) consists of two distinct

clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows

for relief only “if the state court arrives at a

conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court

decides a case differently than [the Supreme] Court

has on a set of materially indistinguishable facts.” Id.

at 413, 120 S. Ct. at 1523 (plurality opinion). The

“unreasonable application” clause allows for relief

only “if the state court identifies the correct

governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield

v. Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because

the federal habeas court would have reached a

different conclusion in the first instance.’” Titlow, 571

U.S. at ---, 134 S. Ct. at 15 (quoting Wood v. Allen,

558 U.S. 290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d

738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

examination of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting

Richter, 562 U.S. at 102-03). This standard is “meant to be” a “difficult” one

to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s

claims were adjudicated on the merits in the state courts, they must be

evaluated under 28 U.S.C. § 2254(d).

B. Exhaustion/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 that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest

court, either on direct appeal or on collateral review. Castille v. Peoples, 489

U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim,

“state prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s

established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838,

845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a

state prisoner must exhaust available state remedies,

28 U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor,

404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438

(1971)). To provide the State with the necessary

“opportunity,” the prisoner must “fairly present” his

claim in each appropriate state court (including a

state supreme court with powers of discretionary

review), thereby alerting that court to the federal

nature of the claim. Duncan, supra, at 365-366, 115

S. Ct. 887; O’Sullivan v. Boerckel, 526 U.S. 838, 845,

119 S. Ct. 1728, 144 L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are

guided by rules designed to ensure that state-court

judgments are accorded the finality and respect

necessary to preserve the integrity of legal

proceedings within our system of federalism. These

rules include the doctrine of procedural default,

under which a federal court will not review the

merits of claims, including constitutional claims, that

a state court declined to hear because the prisoner

failed to abide by a state procedural rule. See, e.g.,

Coleman,[4] supra, at 747-748, 111 S. Ct. 2546;

Sykes,[5] 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, 617-18, 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.

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

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

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults

may be excused under certain circumstances. Notwithstanding that 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). In order for a petitioner to establish

cause,

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).[6] 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).

In the absence of 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:

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

[I]f a petitioner cannot show cause and prejudice,

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th

Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally,

“‘[t]o be credible,’ a claim of actual innocence must be based on reliable

evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559

(1998) (quoting Schlup, 513 U.S. at 324). With the rarity of such evidence, in

most cases, allegations of actual innocence are ultimately summarily

rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’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) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then

Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct.

2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct.

2052. It is not enough “to show that the errors had

some conceivable effect on the outcome of the

proceeding.” Id., at 693, 104 S. Ct. 2052. Counsel’s

errors must be “so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id., at

687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet

the prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d

1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice, which

we expect will often be so, that course should be followed.” Strickland, 466

U.S. at 697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation

is a most deferential one.” Richter, 562 U.S. at ---,

131 S. Ct. at 788. But “[e]stablishing that a state

court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The

standards created by Strickland and § 2254(d) are

both highly deferential, and when the two apply in

tandem, review is doubly so.” Id. (citations and

quotation marks omitted). “The 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, 129 S. Ct.

1411, 1420, 173 L.Ed.2d 251 (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 ---,

131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference — this one to a state court’s decision — when we

are considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As

such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, Haynes argues his trial counsel was ineffective for

failing to object and request a Richardson7 hearing during the State’s redirect

examination of Mindy Lethco, an eyewitness to the armed robbery and

murder. See Amended Petition at 17-32. According to Haynes, Lethco’s

testimony materially changed from her prior deposition testimony and as

such, the State committed a discovery violation by failing to inform defense

counsel before trial of Lethco’s allegedly changed account of the incident. Id.

Haynes further contends that he suffered prejudice because Lethco’s changed

testimony negated his defense theories. Id.

7 “A Richardson hearing is a proceeding under Florida law by which a

criminal defendant can challenge a discovery violation.” Taylor v. Sec’y, Fla. Dep’t of

Corr., 64 F.4th 1264, 1272 (11th Cir. 2023). “Under Richardson, the reviewing court

assesses whether a discovery violation resulted in harm or prejudice to the

defendant; in doing so, the court considers circumstances such as whether the

violation was ‘inadvertent or willful’ and ‘trivial or substantial’ as well as what

effect, if any, the violation had on ‘the ability of the defendant to properly prepare

for trial.’” Id. (quoting Richardson, 246 So. 2d at 775).

Haynes raised a substantially similar claim in his Rule 3.850 Motion.

The postconviction court denied relief, stating in relevant part:

The Richardson claim is controlled by Bush v.

State, 461 So. 2d 936, 938 (Fla. 1984):

The prosecutor’s failure to inform the

defense counsel of [changes in witness]

testimony is not a discovery violation. . . .

When testimonial discrepancies appear,

the witness’ trial and deposition

testimony can be laid side-by-side for the

jury to consider. This would serve to

discredit the witness and should be

favorable to the defense. Therefore,

unlike failure to name a witness, changed

testimony does not rise to the level of a

discovery violation and will not support a

motion for a Richardson inquiry.

Id. at 938. Likewise, the State’s failure to advise

Defendant before trial about the allegedly changed

testimony of Mindy Lethco did not constitute a

discovery violation necessitating a Richardson

inquiry. Furthermore, based on the deposition

transcripts and testimony presented at the

evidentiary hearings, this Court finds that Mindy

Lethco’s deposition testimony could reasonably be

interpreted to be consistent with her trial testimony.

Accordingly, because counsel was not deficient for not

requesting a Richardson inquiry, this claim is denied.

See Doc. 10-18 at 4. The First DCA affirmed the denial of relief without a

written opinion. See Doc. 10-23.

To the extent that the First DCA decided this claim on the merits,8 the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Haynes is not

entitled to relief on the basis of this claim.

Even if the state appellate court’s adjudication of this ineffective

assistance claim is not entitled to deference, the claim is without merit. The

record supports the postconviction court’s conclusion that a Richardson

inquiry was not required. Haynes asserts that Lethco’s testimony during the

redirect examination that Haynes kicked the victim after he told co-

defendant Craig Roback (Craig) to stop was “surprise” testimony because

Lethco had not raised it during her prior deposition. However, as set forth

below, Lethco testified in her deposition that Haynes continued to actively

participate in the attack even after he told Craig multiple times to stop:

8 Throughout this Order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the

appellate court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.

Q: You were on your knees, all right, with everything

tied behind you. Okay. What’s the next thing that

happened?

A: They started fighting with [the victim], Craig and

[Haynes] both. Craig hit him first. They started

fighting back and forth. The masks, [Craig and

Haynes] had bandannas on, were pulled off.

Q: All right. So when you say they were fighting back

and forth[,] who was fighting back and forth?

A: [The victim] and both Craig and [Haynes] fighting

with him.

Q: Okay. And was – were there any weapons at this

point?

A: They pulled – they pulled out a gun. It looked like

a gun. I’m not sure if it was. Craig had it. . . . He put

it in [the victim’s] face and told him open his mouth

and he did. He said that he would blow his brains out

if he didn’t give him the money. He said – and then

[Haynes] said, “That would make too much

noise. You don’t want to do that. You don’t want

a mess,” and Craig stopped.

Q: Okay. You said Craig pulled a gun out. Where did

he pull it out of?

A: The black bag.

. . .

Q: All right. What happened next?

A: [Haynes] and – well, Craig pushed [the victim] to

the ground fighting with him, knocked him to the

ground and he picked up the coffee table and put it

on [the victim’s] throat.

Q: Who did?

A: Craig did. Shoving it down on [the victim], telling

him to just give him the money. While he had it down

[Haynes] got his wallet out of his pocket.

Q: [The victim’s] wallet?

A: Yes.

Q: Okay.

A: And he threw it to me and told me to look – look

through his wallet, which I couldn’t. I just told him

my hands were behind my back so I didn’t do

anything. I just stayed still. And when – [Haynes]

said, “Stop. You’re screwing it up. He’s not

going to be able to breath[e]. Take – he told

[Craig] to take the coffee table off [of the

victim.] [T]hen [the victim] got up again

fighting with them. [Haynes] hit him in the

face.

Q: With what?

A: His fist.

Q: Okay.

A: Craig got him, hit him again.

Q: With what?

A: His fist.

Q: Okay.

A: They started struggling. In between all of this

[Haynes] had gloves on, rubber gloves. One of them

were ripped because he was bleeding from his leg[.]

. . .

Q: So the glove ripped?

A: Correct.

Q: What happened then?

A: They fought back and forth. There were screaming

the whole time at [the victim] to just give the money

and they would leave. They didn’t want to hurt him, .

. . why is he fighting.

Q: All right. What else happened?

A: They took turns beating him. I mean, between

the both of them, Craig was the aggressor, but

anything Craig had said for [Haynes] to do[,]

[Haynes] did and then, at one point, [Haynes] became

the aggressor when he got upset with [the victim] for

not giving him – he kept asking him where the safe

was and he kept saying he didn’t – [the victim] kept

speaking in his [native] language saying, “No”. And

then [the victim] would say, “No, not giving you

money”. Craig kicked him, [Haynes] kicked him.

They used a Mag flashlight.

Q: How many flashlights were there?

A: Just one.

Q: And where did that come from?

A: Out of their duffle bag.

Q: Who – did you see someone pull it out of the bag?

A: The first person who grabbed it was [Haynes].

Q: All right. And what did you see [Haynes] do with

the flashlight?

A: He pulled it behind [the victim’s] neck, up against

his throat, choking him from behind.

Q: Okay. What did you see after that?

A: They hit him with the flashlight, Craig did first, in

the head. Then [Haynes] hit him with the flashlight.

They hit him a couple of times with it. They tied him

up with a phone cord. They hit him with the room

phone that was on the TV stand.

. . .

Q: What else do you recall seeing?

A: During the fighting they dumped a Coke can on

him, hit him in the head with it.

Q: Who dumped a Coke can?

A: [Haynes].

. . .

Q: What else did you see?

A: They pulled him to the – by where the safe was.

They started tearing the room apart. They found the

safe, told him to give the combination. He said he –

he didn’t give them one. They kept taking turns still

hitting him. Craig said to him that he breaks bones

for a living. He has done this before, this means

nothing to him. [Haynes] told him to stop. “You’re

going to end up killing him,” several times.

Doc. 10-12 at 39-43 (emphasis added). Viewed chronologically, Lethco’s above

deposition testimony was not inconsistent with her trial testimony.

Moreover, Haynes’ trial counsel acknowledged the consistency between

Lethco’s trial and deposition testimony when she testified during the

evidentiary hearing on the Rule 3.850 Motion. See Doc. 10-15 at 55. After she

read Lethco’s deposition testimony into the record, Haynes’ trial counsel

testified:

Q: Does anywhere in that reading [of Lethco’s

deposition] indicate to you that Douglas Haynes said

stop and then kicked the victim afterwards?

A: At the bottom of page 40, line 21, [Haynes] said,

Stop, you’re screwing it up, he’s not going to be able

to breath.

Q: Does it give you any indication that [Haynes]

kicked him – I’m sorry, that Mr. Haynes kicked him

afterwards?

A: According to the testimony, yes, on the top of page

42, line 4, Craig kicked him, [Haynes] kicked him. So

if that testimony was in chronological order,

then there was a time that Mr. Haynes said

stop, he’s not able to breathe, and then later or

sequentially kicked him – or not sequentially

but subsequently . . . kicked him.

See Doc. 10-15 at 54-55 (emphasis added).

Insofar as Haynes argues the postconviction court erroneously applied

Florida law to find there was no discovery violation, discovery is a matter of

state law, see generally Fla. R. Crim. P. 3.220, and this Court must defer to a

state court’s ruling on a matter of state law. Will v. Sec’y, Fla. Dep’t of Corr.,

278 F. App’x 902, 908 (11th Cir. 2008) (“Although an ineffective-assistance-of-

counsel claim is a federal constitutional claim, which we consider in light of

the clearly established rules of Strickland, when ‘the validity of the claim

that [counsel] failed to assert is clearly a question of state law, . . . we must

defer to the state’s construction of its own law.’”) (quoting Alvord v.

Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)); see also Huddleston v.

Sec’y, Fla. Dep’t of Corr., No. 8:16-cv-76-WFJ-AAS, 2019 WL 339225, at *5

(M.D. Fla. Jan. 28, 2019) (holding that “[w]hile the issue before the court is

one of ineffective assistance, a question cognizable on federal habeas review,

the underlying issue of whether a discovery violation occurred under Florida

law and whether counsel should have objected and moved for a Richardson

hearing is a question of state law” that binds the court).9

Finally, even assuming arguendo deficient performance by defense

counsel, Haynes has not shown any resulting prejudice. He has not shown

that a reasonable probability exists that the outcome of the case would have

been different if his trial counsel had requested a Richardson hearing.

Accordingly, relief on the claim in Ground One is due to be denied.

B. Ground Two

As Ground Two, Haynes argues his trial counsel was ineffective when

she failed to object to the prosecutor’s remark, during closing argument, that

9 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on

a particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir.

2022); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions

are not considered binding precedent, but they may be cited as persuasive

authority.”).

Haynes’ incriminating text messages to his girlfriend “can’t now be explained

away.” See Amended Petition at 32-40 (quoting Doc. 10-5 at 11). Haynes

asserts this statement constituted improper “burden shifting and . . .

comment[ed] on Haynes’ right to remain silent, prejudicing the outcome of

the trial.” See Amended Petition at 32.

Haynes raised a substantially similar claim in his Rule 3.850 Motion.

The postconviction court denied the claim, stating in pertinent part:

[A]s to the improper closing argument claim,

Defendant takes issue with the State arguing that

Defendant’s incriminating text messages “can’t now

be explained away.” This statement was made in

response to text messages Defendant sent his

girlfriend, Kristi Leppard, following the botched

robbery and murder, including:

- “Look, baby, be there in a sec. I’m sorry, I think

we fucked up.”

- “Open door when I call you, I got a [sic] shower

and kind of need to leave. Shit went too far.

Delete all texts.”

Defendant claims the can’t-be-explained-away

comment constitutes improper burden shifting.

Regardless of the propriety of the State’s

comment, Defendant was not prejudiced. Given the

mountain of evidence establishing Defendant’s guilt,

there is no reasonable possibility that Defendant

would have been acquitted if not for this single

statement at closing. Accordingly, this claim is

denied.

Doc. 10-18 at 4-5 (record citations omitted). The First DCA affirmed the

denial of relief without a written opinion. See Doc. 10-23.

To the extent that the First DCA decided this claim on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Haynes is not

entitled to relief on the basis of this claim.

Nevertheless, even if the state appellate court’s adjudication of this

claim is not entitled to deference, the claim is without merit. Attorneys are

permitted wide latitude in their closing arguments, and the record reflects

that the trial judge instructed the jury that the attorneys’ arguments were

not evidence. See Docs. 10-2 at 8, 10-4 at 184; see Brown v. Jones, 255 F.3d

1273, 1280 (11th Cir. 2001) (stating that “jurors are presumed to follow the

court’s instructions”). After reviewing the record, viewing the prosecutor’s

remarks in the context of the trial as a whole, and assessing their “probable

impact” on the jury, see United States v. Hill, 643 F.3d 807, 849 (11th Cir.

2011), the Court is convinced that the remark at issue did not result in a due

process violation.10

On this record, Haynes has failed to carry his burden of showing that

his trial counsel’s representation fell outside the range of reasonably

professional assistance. And, even assuming arguendo deficient performance

by defense counsel, Haynes has not shown any resulting prejudice. He has

not shown that a reasonable probability exists that the outcome of the case

would have been different if his counsel had objected to the prosecutor’s

remarks. Accordingly, Haynes is not entitled to federal habeas relief on the

claim raised in Ground Two.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Haynes seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. 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, Haynes “must demonstrate

that reasonable jurists would find the district court’s assessment of the

10 The reversal of a conviction is warranted only when improper comments by

a prosecutor have “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(citation omitted); Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1291 (11th Cir.

2012) (citation omitted).

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)).

Where a district court has rejected a petitioner’s constitutional claims

on the merits, the petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong. See Slack, 529 U.S. at 484. However, when the district court has

rejected a claim on procedural grounds, the petitioner must show that “jurists

of reason would find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.

Upon consideration of the record as a whole, the Court will deny a certificate

of appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Amended Petition (Doc. 5) is DENIED, and this action is

DISMISSED WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the

Amended Petition and dismissing this case with prejudice.

3. If Haynes appeals the denial of the Amended Petition, the Court

denies a certificate of appealability. Because the Court has determined that a

certificate of appealability is not warranted, the Clerk shall terminate from

the pending motions report any motion to proceed on appeal as a pauper that

may be filed in this case. Such termination shall serve as a denial of the

motion.

4, The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 13th day of

February, 2024.

MARCIA MORALES HOWARD

United States District Judge

Jax-10 2/6

C: Counsel of record

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