Mueller v. Secretary, Department of Corrections

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

ROBERT MUELLER,

Applicant,

v. CASE NO. 8:17-cv-823-SDM-UAM

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Mueller applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)

and challenges his convictions for attempted second-degree murder, aggravated

battery, and discharging a firearm in public, for which he was sentenced to forty

years’ imprisonment. Numerous exhibits (“Respondent’s Exhibit __”) support the

response. (Doc. 9) The respondent concedes that the application is timely but

argues that some grounds are unexhausted and procedurally defaulted. (Doc. 8)

I. BACKGROUND1

On the evening of February 5, 2007, Mueller was driving around Tarpon

Springs, Florida, with a female companion. Mueller pulled over and attempted to

purchase $40 worth of crack cocaine from two men, John Murray and John Hayes.

Mueller said he “wanted to taste the product” first. (Respondent’s Exhibit 19 at 419)

1 This summary of the facts derives from the trial transcript. (Respondent’s Exhibit 19)

Murray responded, “No, I need to see the money.” (Respondent’s Exhibit 19 at 419)

The two argued for some time, and Murray began to walk away from the car.

Mueller shouted, “F***ing n****r,” shot Murray in the back with a revolver, and

fled.2 (Respondent’s Exhibit 19 at 369) Murray survived his gunshot wound.

Later that evening, Mueller drove to the house of Brian Barnes, a friend for

whom he had done some construction work. At the time, the two were quarreling

over money. Twenty minutes before Mueller arrived at the house, he had called

Barnes and threatened to kill him. As he approached the residence, Mueller fired his

revolver in the direction of the house. One bullet struck a car parked in the

driveway. Barnes was elsewhere at the time of the shooting, but his wife and

children were inside the house. They were unharmed.

Mueller left Barnes’s house and returned to the house where he was staying.

The owner of the house, Thomas Muessig, was a convicted felon. Muessig was

upset that Mueller had brought a gun to the residence, and the two began to argue.

Mueller ended the argument by striking Muessig in the face with the gun.

Following a jury trial, Mueller was convicted of attempted second-degree

murder, aggravated battery, and discharging a firearm in public. The state appellate

court vacated the conviction for attempted second-degree murder based on an error

in the jury instructions. Mueller v. State, 100 So. 3d 47, 50 (Fla. 2d DCA 2011). The

court affirmed the other convictions. Although counsel represented him during the

2 Mueller is white; Murray and Hayes are African American.

first trial, Mueller proceeded pro se at the re-trial. The jury found him guilty of

attempted second-degree murder, and the state appellate court affirmed without a

written opinion.

II. EXHAUSTION AND PROCEDURAL BAR

Ground one of the application contains six sub-claims. (Doc. 1 at 5–6) The

respondent argues that each sub-claim is barred from federal review because Mueller

failed to exhaust his state court remedies. (Doc. 8 at 6, 14) “[E]xhaustion of state

remedies requires that petitioners ‘fairly presen[t]’ federal claims to the state courts in

order to give the State the ‘opportunity to pass upon and correct’ alleged violations of

its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting

Picard v. Connor, 404 U.S. 270, 275 (1971)); accord Rose v. Lundy, 455 U.S. 509, 518–

19 (1982) (“A rigorously enforced total exhaustion rule will encourage state prisoners

to seek full relief first from the state courts, thus giving those courts the first

opportunity to review all claims of constitutional error.”). An applicant must present

to the federal court the same claim presented to the state court. See Picard, 404 U.S.

at 275 (“[W]e have required a state prisoner to present the state courts with the same

claim he urges upon the federal courts.”). “Mere similarity of claims is insufficient to

exhaust.” Henry, 513 U.S. at 366.

As Baldwin v. Reese, 541 U.S. 27, 32 (2004), explains, an applicant must alert

the state court that he is raising a federal claim and not just a state law claim:

A litigant wishing to raise a federal issue can easily

indicate the federal law basis for his claim in a state court

petition or brief, for example, by citing in conjunction with

tchaese c ldaeicmid tihneg fseudcehr aal csolauimrce o onf fleadwe roanl gwrohuicnhd hs,e o rre bliyes or a

simply labeling the claim “federal.”

“It is not enough that all the facts necessary to support the federal claim were before

the state courts, or that a somewhat similar state law claim was made.” Anderson v.

Harless, 459 U.S. 4, 6 (1982). Consequently, “a petitioner with a claim that could

arise under state or federal law must clearly indicate to the state courts that he

intends to bring a federal claim.” Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 458

(11th Cir. 2015).

Ground One, Sub-Claim A:

Mueller asserts that the trial court violated the Sixth Amendment by

conducting an inadequate Faretta3 inquiry. (Doc. 1 at 5) According to Mueller, the

court failed to establish that he understood “the offer of counsel,” that his waiver of

the right to counsel was “knowing and intelligent,” and that he did not “suffer[] from

severe mental illness.” (Doc. 1 at 5) Mueller raised the same claim on direct appeal.

He argued that “[r]eversal was required” based on the court’s “insufficient Faretta

inquiry,” which allegedly failed to establish his “comprehension of the offer of

counsel,” failed to establish his “capacity to make a knowing and intelligent waiver,”

and failed to establish whether he “suffer[ed] from severe mental illness.”

(Respondent’s Exhibit 24 at 25–26) Consequently, ground one, sub-claim A is

exhausted.

3 Faretta v. California, 422 U.S. 806 (1975).

Ground One, Sub-Claim B:

Mueller claims that the trial court violated his Sixth Amendment right of

confrontation (1) by restricting his cross-examination of witnesses and (2) by denying

his request to call state investigator Gary Gibson as a witness at trial. (Doc. 1 at 5;

Doc. 18 at 5–6) Mueller raised this claim on direct appeal. He contended that the

trial court erred in “refus[ing] to allow [him] to complete his cross-examination of

witnesses” and “further erred in refusing to allow [him] to call [i]nvestigator Gibson

as a witness at trial.” (Respondent’s Exhibit 24 at 9–12, 29) In support, Mueller

cited Holley v. State, 48 So. 3d 916 (Fla. 4th DCA 2010). (Respondent’s Exhibit 24 at

31) Holley held that “the defendant’s Sixth Amendment right to confront” witnesses

was “violated” by the trial court’s restriction on cross-examination of a witness. 48

So. 3d at 920–21. Because Holley rested in part on federal constitutional grounds,

Mueller’s citation of that decision sufficed to alert the state court to the federal nature

of his claim. See Wells v. Sec’y Dep’t of Corr., 343 F. App’x 581, 584 (11th Cir. 2009)

(holding that petitioner fairly presented federal claim where he “cited and discussed

only one case,” a “Florida appellate [decision]” that resolved claim on federal

constitutional grounds).4 As a consequence, ground one, sub-claim B is exhausted.

Ground One, Sub-Claims C, D, E, and F:

In the remainder of ground one, Mueller asserts that his federal constitutional

rights were violated because (1) the trial court prohibited his arguing to the jury that

4 “Unpublished opinions are not considered binding precedent, but they may be cited as

persuasive authority.” 11th Cir. Rule 36-2.

“his arrest was illegal” (sub-claim C); (2) the trial court “repeatedly treated [him]

with disdain, disrespect, and disparagement in front of the jury and allowed the State

to do the same” (sub-claim D); (3) the trial court refused to “allow [him] to impeach

three . . . witnesses with prior inconsistent statements” (sub-claim E); and (4) the

“cumulative effect” of the alleged “evidentiary errors” denied him a “[f]air and

[i]mpartial [t]rial” (sub-claim F). (Doc. 1 at 5–6)

Mueller raised similar claims on direct appeal, but he failed to make the state

court aware that they “present[ed] federal constitutional issues.” Lucas v. Sec’y, Dep’t

of Corr., 682 F.3d 1342, 1352 (11th Cir. 2012). Mueller did not argue that the trial

court’s alleged errors violated any federal right. Nor did he cite any provision of the

federal constitution. Instead, he relied entirely on Florida law in challenging the trial

court’s rulings. (Respondent’s Exhibit 24 at 32–43) Accordingly, Mueller did not

“fairly present” these federal claims to the state court. See Baldwin, 541 U.S. at 27.

Because sub-claims C, D, E, and F are unexhausted, they are barred from

federal review absent a showing of “actual cause and prejudice” or “manifest

injustice.” Coleman v. Thompson, 501 U.S. 72, 29–30 (1991); Murray v. Carrier, 477

U.S. 478, 496 (1986). The basis for “cause” must ordinarily reside in something

external to the defense. Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995). To

show “prejudice,” the applicant must establish “not merely that the errors . . . created

the possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions.”

Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (quoting United States v. Frady,

456 U.S. 152, 170 (1982)). A fundamental miscarriage of justice occurs only if a

constitutional violation has probably resulted in the conviction of someone who is

actually innocent. House v. Bell, 547 U.S. 518, 536–37 (2006). A petitioner “must

establish that, in light of new evidence, ‘it is more likely than not that no reasonable

juror would have found petitioner guilty beyond a reasonable doubt.’” House, 547

U.S. at 536–37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

Mueller fails to establish either cause and prejudice or a fundamental

miscarriage of justice. Therefore, sub-claims C, D, E, and F of ground one are

procedurally barred from federal review. Sub-claims A and B are, however, entitled

to a review on the merits.

III. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs this proceeding. Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir.

1998). Section 2254(d), which creates a highly deferential standard for federal court

review of a state court adjudication, states in pertinent part:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim —

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

lcioguhrtt o pfr tohcee eedviidnegn. ce presented in the State

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power

of a federal habeas court to grant a state prisoner’s

application for a writ of habeas corpus with respect to

claims adjudicated on the merits in state court. Under §

2254(d)(1), the writ may issue only if one of the following

two conditions is satisfied — the state court adjudication

resulted in a decision that (1) “was contrary to . . . clearly

established Federal law, as determined by the Supreme

Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United

States.” Under the “contrary to” clause, a federal habeas

court may grant the writ if the state court arrives at a

conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case

differently than this Court has on a set of materially

indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the

writ if the state court identifies the correct governing legal

principle from this Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable[;] . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for

obtaining habeas corpus from a federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562

U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical

point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,

and only if, it is so obvious that a clearly established rule applies to a given set of

facts that there could be no fairminded disagreement on the question . . . .”); Woods v.

Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable application of’ those

holdings must be objectively unreasonable, not merely wrong; even clear error will

not suffice.”) (citing Woodall, 572 U.S. at 419). Accord Brown v. Head, 272 F.3d 1308,

1313 (11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of

the state court decision that we are to decide.”). The phrase “clearly established

Federal law” encompasses only the holdings of the United States Supreme Court “as

of the time of the relevant state-court decision.” Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “[AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in

order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are

given effect to the extent possible under law.” Bell, 535 U.S. at 694. A federal court

must afford due deference to a state court’s decision. “AEDPA prevents defendants

— and federal courts — from using federal habeas corpus review as a vehicle to

second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766,

779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult

to meet,’ . . . and ‘highly deferential standard for evaluating state-court rulings,

which demands that state-court decisions be given the benefit of the doubt’ . . . .”)

(citations omitted).

When the last state court to decide a federal claim explains its decision in a

reasoned opinion, a federal habeas court reviews the specific reasons as stated in the

opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.

1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons

given by the state court and defers to those reasons if they are reasonable.”). When

the relevant state-court decision is not accompanied with reasons for the decision,

the federal court “should ‘look through’ the unexplained decision to the last related

state-court decision that does provide a relevant rationale [and] presume that the

unexplained decision adopted the same reasoning.” Wilson, 138 S. Ct. at 1192.

In a per curiam decision without a written opinion, the state appellate court on

direct appeal affirmed Mueller’s conviction and sentence for attempted second-

degree murder. (Respondent’s Exhibit 26) Similarly, in another per curiam decision

without a written opinion, the state appellate court denied Mueller’s petition alleging

ineffective assistance of appellate counsel. (Respondent’s Exhibit 35) The state

appellate court’s per curiam decisions warrant deference under Section 2254(d)(1)

because “the summary nature of a state court’s decision does not lessen the deference

that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also

Richter, 562 U.S. at 100 (“When a federal claim has been presented to a state court

and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any indication or state-law

procedural principles to the contrary.”), and Bishop v. Warden, 726 F.3d 1243, 1255–

56 (11th Cir. 2013) (describing the difference between an “opinion” or “analysis”

and a “decision” or “ruling” and explaining that deference is accorded the state

court’s “decision” or “ruling” even absent an “opinion” or “analysis”).

As Pinholster explains, 563 U.S. at 181–82, review of the state court decision is

limited to the record that was before the state court:

We now hold that review under § 2254(d)(1) is limited to

the record that was before the state court that adjudicated

the claim on the merits. Section 2254(d)(1) refers, in the

past tense, to a state-court adjudication that “resulted in” a

decision that was contrary to, or “involved” an

unreasonable application of, established law. This

backward-looking language requires an examination of the

state-court decision at the time it was made. It follows

that the record under review is limited to the record in

existence at that same time, i.e., the record before the state

court.

Mueller bears the burden of overcoming by clear and convincing evidence a

state court’s fact determination. “[A] determination of a factual issue made by a

State court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but

not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th

Cir. 2001).

IV. ISSUES ON DIRECT APPEAL

Ground One, Sub-Claim A:

Mueller asserts that the trial court violated the Sixth Amendment by failing to

“conduct a proper Faretta inquiry.” (Doc. 1 at 5) According to Mueller, the Faretta

inquiry was inadequate because the court failed to establish that (1) he understood

“the offer of counsel,” (2) his waiver of the right to counsel was “knowing and

intelligent,” and (3) he did not “suffer[] from severe mental illness.” (Doc. 1 at 5)

The state appellate court rejected this claim in a per curiam decision without a written

opinion. (Respondent’s Exhibit 26) Consequently, Mueller must show that the state

court’s decision possessed “no reasonable basis.” Richter, 562 U.S. at 98. He cannot

meet his burden.

“The Sixth Amendment safeguards to an accused who faces incarceration the

right to counsel at all critical stages of the criminal process.” Iowa v. Tovar, 541 U.S.

77, 80–81 (2004). But a defendant also “has a constitutional right to proceed without

counsel when he voluntarily and intelligently elects to do so.” Faretta, 422 U.S. at

807. “Faretta provides that when a defendant requests to discharge counsel and to

proceed pro se, a trial court should conduct an inquiry and make the defendant

‘aware of the dangers and disadvantages of self-representation, so that the record . . .

establish[es] that [the defendant] knows what he is doing and his choice is made with

eyes open.’” Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 798 (11th Cir. 2020)

(quoting Faretta, 422 U.S. at 835).

“The ideal method of assuring a voluntary waiver is for the trial judge to

conduct a pre-trial hearing at which the defendant would be informed of the charges,

basic trial procedures, and the hazards of self-representation.” United States v. Stanley,

739 F.3d 633, 645 (11th Cir. 2014). The Supreme Court has not, however,

“prescribed any formula or script to be read to a defendant who states that he elects

to proceed without counsel.” Tovar, 541 U.S. at 88. “The core inquiry is whether

the defendant understood the choices before him and the potential dangers of

proceeding pro se.” Jones v. Walker, 540 F.3d 1277, 1293 (11th Cir. 2008). “If so, his

waiver is valid.” Id.

The trial court conducted a proper Faretta inquiry, after which Mueller

knowingly and voluntarily waived his right to counsel. Four months before the

retrial on the attempted murder charge, Mueller told the court during a pretrial

hearing that he “want[ed] to represent” himself. (Respondent’s Exhibit 9 at 7) The

court responded that self-representation would be “silly” and “ridiculous” and “put[]

you[] at a tremendous disadvantage.” (Respondent’s Exhibit 9 at 8) The court

proceeded to “conduct a Faretta hearing” because Mueller had “indicated he wanted

to represent himself.” (Respondent’s Exhibit 9 at 10) In response to the court’s

questions, Mueller disclosed that he was a high school dropout with no formal legal

training, but that he could “read and write.” (Respondent’s Exhibit 9 at 10–11) The

court explained to Mueller that if he represented himself, he would be “responsible

for . . . following the rules.” (Respondent’s Exhibit 9 at 12) To emphasize the point,

the court noted that “on one side” “you ha[ve] [the prosecutor],” who “knows the

rules, knows the law, knows the Evidence Code, and you have you on the other

side.” (Respondent’s Exhibit 9 at 13) Also, the court reminded Mueller that he had

“already [gone] to trial once and lost.” (Respondent’s Exhibit 9 at 12)

The court explained that Mueller faced a mandatory minimum sentence of

twenty-five years’ imprisonment, and the prosecutor noted that the statutory

maximum was life in prison. The court reiterated that “[a]ny of the things [] a

lawyer would be able to do, you’re realistically not going to be able to do.”

(Respondent’s Exhibit 9 at 13) This included “setting up depos,” which would

require Mueller to “go through the whole jail bureaucracy.” (Respondent’s Exhibit 9

at 13) Also, the court informed Mueller that he did not “have to maintain [his] self-

representation throughout this process,” and that he could “decide at some future

time that [he] want[ed] [his] lawyer back.” (Respondent’s Exhibit 9 at 15)

Following this colloquy, the court asked Mueller whether, “even

understanding the disadvantages that we’ve discussed and the possible penalties,” he

still wished to represent himself. (Respondent’s Exhibit 9 at 16) Mueller answered

yes. (Respondent’s Exhibit 9 at 16) The court allowed Mueller to proceed pro se and

appointed his public defender as standby counsel. At subsequent pretrial hearings,

the court asked Mueller at least six times whether he would continue representing

himself. Each time, Mueller answered in the affirmative. (Respondent’s Exhibit 10

at 3; Exhibit 11 at 5, 122; Exhibit 12 at 3; Exhibit 13 at 8; Exhibit 15 at 49)

The record establishes that Mueller chose to represent himself “with eyes

open.” Tovar, 541 U.S. at 88. During the Faretta inquiry, the court (1) reminded

Mueller of the dangers of proceeding pro se, (2) warned Mueller that self-

representation created a “tremendous disadvantage,” (3) described the potential

penalties Mueller faced if convicted, and (4) reminded Mueller that the jury had

found him guilty of attempted second-degree murder at the first trial. Despite these

warnings, Mueller elected to represent himself. Because Mueller “understood the

choices before him and the potential dangers of proceeding pro se,” he knowingly and

voluntarily waived his right to counsel. Jones, 540 F.3d at 1293; see also Tuomi, 980

F.3d at 799 (holding that “Faretta-based challenge to the validity of [petitioner’s]

waiver of his right to counsel did not have a reasonable probability of success”

because trial court “made [petitioner] aware of the dangers and disadvantages of pro

se representation as well as the charges against him and the potential sentence he

faced”). Therefore, the state court reasonably rejected Mueller’s Faretta claim.

Mueller resists this conclusion and contends that the trial court erroneously

failed to “make on the record determinations” that his “waiver [was] free and

voluntary.” (Doc. 18 at 4) This argument lacks merit. The court did not expressly

state that Mueller’s waiver was knowing and voluntary, but it does not follow that

the court violated Faretta. A trial court “ideally . . . should . . . make an explicit

finding that [the defendant] has chosen to represent himself with adequate

knowledge of the possible consequences.” Nelson v. Alabama, 292 F.3d 1291, 1295

(11th Cir. 2002). “The failure to do so, however, is not error as a matter of law.” Id.

If the “trial record shows that a defendant knowingly and voluntarily elected to

represent himself, the Faretta standard will be satisfied.” Id. As determined above,

the record establishes that Mueller elected to proceed pro se “with eyes open.” Tovar,

541 U.S. at 88. Thus, the court complied with Faretta.

Also, Mueller faults the trial court for failing to ask whether he “suffered from

severe mental illness.” (Doc. 1 at 5) But Mueller “did not show, and has not shown,

that he suffered from a significant mental illness to such an extent that his choice

must not be considered intelligent.” United States v. Posadas-Aguilera, 336 F. App’x

970, 976 (11th Cir. 2009); see also United States v. Jackson, 859 F. App’x 389, 390 (11th

Cir. 2021) (rejecting Faretta-based argument that “the district court needed to make a

more specific inquiry into [defendant’s] mental health” because defendant “hasn’t

contended here that he was or is severely mentally ill”).

Because the Faretta claim is meritless, ground one, sub-claim A is denied.5

Ground One, Sub-Claim B:

Mueller asserts that the trial court violated his Sixth Amendment right of

confrontation by (1) restricting his cross-examination of Officer Barry Wireman and

Detective Scott Brockew and (2) denying his request to call state investigator Gary

Gibson as a witness at trial. (Doc. 1 at 5; Doc. 18 at 5–6; Respondent’s Exhibit 24 at

9–12, 29) The state appellate court rejected this claim in a per curiam decision

without a written opinion. (Respondent’s Exhibit 26) As a consequence, Mueller

bears the burden of showing “no reasonable basis for the state court to deny relief.”

Richter, 562 U.S. at 98.

The Confrontation Clause requires “a full and fair opportunity to probe and

expose . . . infirmities through cross-examination, thereby calling to the attention of

the factfinder the reasons for giving scant weight to the witness’ testimony.”

Delaware v. Fensterer, 474 U.S. 15, 22 (1985). But the Clause guarantees only “an

5 Mueller faults the trial court for “fail[ing] to renew the offer of assistance of counsel . . . at

each critical stage of the prosecution.” (Doc. 1 at 5) But “[t]here is no clearly established Supreme

Court law on when the Sixth Amendment requires an additional waiver of counsel.” McClain v.

Sec’y, Dep’t of Corr., 855 F. App’x 610, 613 (11th Cir. 2021); accord Duncan v. Sec’y, Fla. Dep’t of Corr.,

No. 3:18-cv-2099-MCR-GRJ, 2021 WL 4464431, at *12 (N.D. Fla. Aug. 20, 2021) (“Petitioner does

not have a constitutional right to a renewed offer of counsel at all pretrial proceedings and during the

evidentiary portion of trial.”), adopted by 2021 WL 4465996 (N.D. Fla. Sept. 29, 2021). Regardless,

the trial court repeatedly offered Mueller the assistance of counsel after his initial waiver, and each

time he declined the offer.

opportunity for effective cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.” Fensterer, 474 U.S.

at 20. “[T]rial judges retain wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on [] cross-examination based on concerns

about . . . harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986). “The test for the Confrontation Clause is whether a

reasonable jury would have received a significantly different impression of the

witness’s credibility had counsel pursued the proposed line of cross-examination.”

United States v. Williams, 526 F.3d 1312, 1319 (11th Cir. 2008); see also Van Arsdall,

475 U.S. at 680 (“[A] criminal defendant states a violation of the Confrontation

Clause by showing that he was prohibited from engaging in otherwise appropriate

cross-examination designed to show a prototypical form of bias on the part of the

witness, and thereby to expose to the jury the facts from which jurors . . . could

appropriately draw inferences relating to the reliability of the witness.”).

Mueller fails to show that the trial court improperly limited his right to

confront witnesses. He complains that during a pretrial suppression hearing, the

court “cut off” his cross-examination of Officer Wireman, one of the officers who

detained him outside his house. (Respondent’s Exhibit 24 at 9, 29) Mueller’s cross-

examination of this witness spanned twenty transcript pages. (Respondent’s Exhibit

11 at 56–76) The questions focused on whether Officer Wireman had reasonable

suspicion to believe that Mueller had fired a gun at his friend’s house. Also, Mueller

attempted to impeach Officer Wireman with statements from his police report. The

court ended the cross-examination after Mueller accused the witness of perjury.

(Respondent’s Exhibit 11 at 76) Mueller’s application fails to identify any questions

he was prevented from asking that would have significantly altered the court’s

“impression of [Officer Wireman’s] credibility.” Williams, 526 F.3d at 1319.

Consequently, he has not shown that the court improperly limited his cross-

examination of this witness.

Mueller likewise fails to show that the court violated the Confrontation Clause

by restricting his cross-examination at trial of Detective Brockew, the lead

investigator on the case. Mueller’s initial cross-examination of this witness spanned

thirty-six transcript pages and covered several topics, including (1) whether law

enforcement had probable cause to arrest Mueller, (2) the owner of the vehicle

Mueller was driving during his crime spree, and (3) Detective Brockew’s background

and investigative practices. (Respondent’s Exhibit 19 at 313–49) In addition,

Mueller asked several improper questions during his examination. For example,

Mueller asked Detective Brockew whether he was “aware that if you file an affidavit

or you make an arrest for any offense that occurs outside your presence, it’s illegal.”

(Respondent’s Exhibit 19 at 342) Also, he posed the following hypothetical: “If I

tell you right now that — can I use you? Mr. Koskinas [the prosecutor] [] just shot

this typing lady here, stenograph lady. Say I just tell you that he shot her. Can you

arrest him and charge him with attempted murder?” (Respondent’s Exhibit 19 at

336) After sustaining several objections to Mueller’s inappropriate questions, the

court ended the cross-examination and told him to “[h]ave a seat.” (Respondent’s

Exhibit 19 at 350)

The prosecution recalled Detective Brockew toward the end of its case. This

time, Mueller’s cross-examination covered (1) the ballistics evidence recovered from

the crime scenes, (2) the date of Hayes’s identification of Mueller as the man who

shot Murray, and (3) whether Detective Brockew arrested Mueller or merely

detained him. (Respondent’s Exhibit 19 at 636–51) The court ended the cross-

examination after Mueller asked for the second time whether Detective Brockew had

“arrest[ed] [him] before [] transport[ing] him [] to the police station.” (Respondent’s

Exhibit 19 at 650–51)

The record shows that Mueller had ample “opportunity for effective cross-

examination” of Detective Brockew. Fensterer, 474 U.S. at 20 (emphasis omitted).

The court sustained several objections to Mueller’s questions, but in each instance

the court acted within its discretion to impose “reasonable limits” on cross-

examination based on “confusion of the issues” or “interrogation that [was]

repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679. Moreover,

Mueller fails to identify any unasked questions that would have created “a

significantly different impression of [Detective Brockew’s] credibility.” Williams, 526

F.3d at 1319. Therefore, Mueller has not shown that the court improperly restricted

his cross-examination of this witness.

Lastly, Mueller contends that the court violated his right of confrontation by

denying his request to call state investigator Gary Gibson as a witness at the second

trial. During the first trial, the jury heard testimony from (1) Torrey Ritchie, the

woman who was in the car when Mueller shot Murray, and (2) Thomas Muessig, the

man Mueller pistol-whipped after the shootings. Shortly before the second trial, the

prosecution moved to admit Ritchie and Muessig’s testimony from the first trial on

the ground that these witnesses were now unavailable. See Essex v. State, 958 So. 2d

431, 432 (Fla. 4th DCA 2007) (“Under the Florida Evidence Code, former testimony

is admissible ‘provided that the declarant is unavailable as a witness.’”) (quoting Fla.

Stat. § 90.804(2)(a)).

The court held an evidentiary hearing on the motion. Gibson, the state

investigator, testified that Muessig had passed away in 2012, and he described

several unsuccessful attempts to locate Ritchie. (Respondent’s Exhibit 15 at 7)

Gibson had spoken with Ritchie’s mother and sister, who told him that she “doesn’t

have a phone” or address. (Respondent’s Exhibit 15 at 8) Also, Gibson represented

that Ritchie “doesn’t use her name . . . or [S]ocial [S]ecurity number on anything that

can be traced.” (Respondent’s Exhibit 15 at 9) Gibson determined that Ritchie lived

“in the Maitland, Florida area,” but he could not locate an address. (Respondent’s

Exhibit 15 at 8) Mueller cross-examined Gibson about the steps he took to verify

Muessig’s passing and whether he had obtained “any address” for Ritchie.

(Respondent’s Exhibit 15 at 10–15) The court granted the prosecution’s motion to

admit the former testimony, reasoning that Muessig was “deceased” and Ritchie

“can’t be found despite diligent effort to do so.” (Respondent’s Exhibit 15 at 27–28)

Shortly before the jury was sworn, Mueller asked the court for permission to

“talk to [] [i]nvestigator Gibson” again because he did not “feel [Gibson] did an

adequate investigation on [Ritchie].” (Respondent’s Exhibit 19 at 208) The court

denied the request and explained that Mueller’s “opportunity to cross-examine

[Gibson] [h]as already gone and passed.” (Doc. 24-2 at 209) When the prosecutor

announced his intention to read Ritchie’s former testimony into evidence, Mueller

renewed his request to call Gibson. The court again denied the request and repeated

that Mueller already “had opportunities . . . to ask questions” of Gibson.

(Respondent’s Exhibit 19 at 505) Later in the trial, the court rejected Mueller’s

request to read into the record “the questions that [he] want[ed] to ask” Gibson.

(Respondent’s Exhibit 19 at 609)

The court did not violate the Sixth Amendment by denying Mueller’s request

to call Gibson at trial. The Confrontation Clause does not guarantee “cross-

examination that is effective in whatever way, and to whatever extent, the defense

might wish.” Fensterer, 474 U.S. at 20. Mueller had an “opportunity for effective

cross-examination” of Gibson during the pretrial hearing on the prosecution’s

motion to admit former testimony. Fensterer, 474 U.S. at 20 (emphasis omitted).

Moreover, Mueller’s application fails to identify any questions he would have asked

Gibson if permitted to call him at trial. Consequently, Mueller fails to show that

additional cross-examination would have led to “a significantly different impression

of [Gibson’s] credibility.” Williams, 526 F.3d at 1319.

Because Mueller’s Confrontation Clause challenges lack merit, ground one,

sub-claim B is denied.6

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Mueller claims ineffective assistance of appellate counsel, a difficult claim to

sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground

of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46

F.3d 1506, 1511 (11th Cir. 1995) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.

1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of

counsel claim:

The law regarding ineffective assistance of counsel claims

is well settled and well documented. In Strickland v.

Washington, 466 U.S. 668 (1984), the Supreme Court set

forth a two-part test for analyzing ineffective assistance of

counsel claims. According to Strickland,

First, the defendant must show that counsel’s

performance was deficient. This requires

showing that counsel made errors so serious

that counsel was not functioning as the

“counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant

must show that the deficient performance

prejudiced the defense. This requires

showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a

trial whose result is reliable.

6 Mueller alleges that the restrictions on his cross-examination of witnesses violated his right

to “Equal Protection of the Law.” (Doc. 1 at 5) Nothing in the application or the record suggests

that the trial court violated Mueller’s right to equal protection.

“There is no reason for a court deciding an ineffective assistance claim . . . to

address both components of the inquiry if the defendant makes an insufficient

showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment.” 466 U.S. at 690. “[A] court deciding an

actual ineffectiveness claim must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” 466 U.S. at 690. Strickland requires that “in light of all the circumstances,

the identified acts or omissions were outside the wide range of professionally

competent assistance.” 466 U.S. at 690.

Mueller must demonstrate that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 691. To meet this burden, Mueller must show “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.” 466 U.S. at 694.

Mueller cannot meet his burden by showing that the avenue chosen by

counsel proved unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir.

1992). Strickland cautions that “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on

investigation.” Strickland, 466 U.S. at 690–91.

The Strickland standard of review applies to a claim of ineffective assistance of

appellate counsel. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To establish

such a claim, Mueller must show both that appellate counsel performed deficiently

and that the deficient performance resulted in prejudice. To demonstrate deficient

performance, Mueller must show that appellate counsel’s failure to discover a non-

frivolous issue and file a merits brief raising that issue fell outside the range of

professionally acceptable performance. Smith v. Robbins, 528 U.S. 259, 285–86

(2000). To demonstrate prejudice, Mueller must show that a reasonable probability

exists that, but for appellate counsel’s unreasonable failure to file a merits brief on a

particular issue, Mueller would have prevailed on appeal. Smith, 528 U.S. at 285–86.

Sustaining a claim of ineffective assistance of counsel under Section 2254(d) is

very difficult because “[t]he standards created by Strickland and § 2254(d) are both

‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”

Richter, 562 U.S. at 105. See Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303

(11th Cir. 2019) (“Given the double deference due, it is a ‘rare case in which an

ineffective assistance of counsel claim that was denied on the merits in state court is

found to merit relief in a federal habeas proceeding.’”) (quoting Johnson v. Sec’y, Dep’t

Corrs., 643 F.3d 907, 911 (11th Cir. 2011)).

In determining “reasonableness,” Section 2254(d) authorizes determining only

“whether the state habeas court was objectively reasonable in its Strickland inquiry”

and not independently assessing whether counsel’s actions were reasonable. Putman

v. Head, 268 F.3d 1223, 1244 n.17 (11th Cir. 2001). The presumption of correctness

and the highly deferential standard of review require that the analysis of each ground

begin with the state court’s analysis.

Ground Two:

Mueller asserts that appellate counsel provided ineffective assistance by failing

to challenge on direct appeal the trial court’s denial of two motions to suppress.

(Doc. 1 at 7–8) In the first motion to suppress, Mueller argued that all post-arrest

identifications of him were “illegally obtained” because law enforcement lacked

probable cause to transport him to the police station. (Respondent’s Exhibit 17) The

court held a lengthy suppression hearing and took testimony from Detective

Brockew and Officer Wireman. (Respondent’s Exhibit 11) Detective Brockew

testified that he responded to the scene of a shooting “in the 500 block of Lime

Street.” (Respondent’s Exhibit 11 at 11) Eyewitnesses told law enforcement that

they had seen a “gold-colored four-door car” with “a distinctive muffler” and

“significant rear end damage” leaving the scene of the shooting. (Respondent’s

Exhibit 11 at 12–13) Soon after Detective Brockew left the scene, he heard a radio

dispatch about a “drive-by shooting” at Brian Barnes’s house. (Respondent’s Exhibit

11 at 13–14) Law enforcement spoke to Barnes, who explained that “just prior” to

the shooting Mueller had called and “threatened to kill him.” (Respondent’s Exhibit

11 at 55–56) Barnes told police that although he was not home when the shooting

took place, he “knew” Mueller “did this.” (Respondent’s Exhibit 11 at 14)

Barnes directed police to the house where Mueller stayed. Police found a

vehicle that matched the description of the car from the first shooting. A man was

getting out of the car when police arrived, and Barnes identified him as Mueller.

Law enforcement detained Mueller in a police vehicle. Aaron Saunders, a witness to

the first shooting, arrived on the scene and identified Mueller “as the person he saw

in the car.” (Respondent’s Exhibit 11 at 18–19) Before transporting Mueller to the

police station, Detective Brockew told Mueller that “the vehicle he was driving was

reportedly seen at the [location of the first] shooting.” (Respondent’s Exhibit 11 at

106) Mueller “indignantly [] asked where” the shooting had occurred.

(Respondent’s Exhibit 11 at 106) Detective Brockew “offered the location of Lime

Street”; Mueller responded, “I didn’t do anything to those n****rs.” (Respondent’s

Exhibit 11 at 106)

After the presentation of testimony, the court orally denied the motion to

suppress (Respondent’s Exhibit 11 at 115–18):

THE COURT: Okay. Your mistake in this process is to

assume that there has to be, in your mind, something

definitive. Probable cause is everything they knew that

goes into the decision at that particular time. And what

they knew were the threats to Barnes, which were recent,

which were specific, which you made, which he knew you

made, which were made because of the specific difficulties

that you had with Barnes, so when Barnes came home to

find his house shot up, even though he didn’t see you

firing it, he knew in his mind that you were the only

person that realistically probably would have done that, so

that’s part of it.

The other part of it is the description of the vehicle, which

was fairly specific even though you disagree whether it

was gray versus gold, but they testified they believed it was

gdoesldcr. i bIet dw. a Ist aw uansi qfouuen vde hinic alen tahraeta w claoss sep teoc iwfihcaerlley the

original first shooting scene was, on Lime, and of course it

was found a couple blocks away, two and two, from the

second crime scene which would have been at Barnes’

house.

So you had the description, they had yourself getting out

of the vehicle right — being in the street right near the

vehicle. You have Saunders identifying you as the driver

of that particular vehicle at the time when the shooting

occurred, and that’s circumstantial, but the vehicle is near

the person that got shot, the shots rang out, he identifies

you as the driver of the vehicle. A logical inference from

that is [] that the person driving was the person shooting.

And then you have the statement that you made, still at

the scene, before they transported you to the officer. And I

quote, because I’m not otherwise saying that, “I didn’t do

anything to those n****rs,” referring to the two black

gentlemen, apparently one of which was shot being

approached in a drug deal.

So when you put all of those things together, there’s

certainly probable cause. That’s not proof beyond a

reasonable doubt. Probable cause is the standard to make

an arrest. And the fact that nobody said at the time that’s

the guy that fired the shots, you somehow mistake that

there has to be that particular statement before that can

reach the level of probable cause.

Mr. Nohlgren [Mueller’s former attorney] was smart

enough to realize that all of those things together would be

sufficient for the officers to take that action, and that’s why

he didn’t presumably file the motion to suppress.

But when you put all of that together, the prior threats to

Barnes, the two shooting scenes, the description of the

vehicle, the closeness of where the vehicle is found, your

ties to the vehicle, Saunders ID’ing you as the driver, and

the statement you made showing knowledge of what

probably occurred over there, or showing knowledge of

what happened, to at least who the victims were and

referring to them in that way, that’s certainly, when you

pouffti caelrl otof tbhealite tvoeg tehthaet ry,o ius pwroerbea bthlee cpaeurssoe nfo trh aat p woalisc e

involved in those crimes.

And when they bolster that probable cause by getting

subsequent identifications, positive identifications, of you

as the shooter, then you wind up potentially with proof

beyond a reasonable doubt, which in this case at least one

jury has already found, so that’s the basis of the ruling.

You think that it has to be somebody saying I was the guy

that fired the shots over on Lime Street before they had

PC. My finding is no, they do not. Based on all of the

facts and circumstances that I’ve put together, I think there

was sufficient probable cause.

Because the trial court correctly denied Mueller’s motion to suppress,

appellate counsel did not perform deficiently by failing to challenge the ruling on

direct appeal. See United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000)

(“Appellate counsel is not ineffective for failing to raise claims reasonably considered

to be without merit.”). “[I]nvoluntary transport to a police station for questioning is

sufficiently like arrest to invoke the traditional rule that arrests may constitutionally

be made only on probable cause.” Kaupp v. Texas, 538 U.S. 626, 630 (2003).

“Probable cause exists where the facts within the collective knowledge of law

enforcement officials, derived from reasonably trustworthy information, are

sufficient to cause a person of reasonable caution to believe that a criminal offense

has been or is being committed.” Gates v. Khokhar, 884 F.3d 1290, 1298 (11th Cir.

2018). Probable cause requires only “a probability or substantial chance of criminal

activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 243

n.13 (1983).

Law enforcement had probable cause to arrest Mueller. By the time Mueller

was taken to the police station, police (1) knew that an eyewitness had identified

Mueller as the driver of a vehicle seen leaving the location of the first shooting, (2)

knew that an officer had found Mueller exiting a vehicle that matched the description

of the car from the first shooting, (3) knew that Barnes had identified Mueller as the

person who shot at his house shortly after threatening to kill him, and (4) knew that

Mueller independently knew the race of the first shooting victim. These facts were

cumulatively “sufficient to cause a person of reasonable caution to believe that a

criminal offense ha[d] been . . . committed.” Gates, 884 F.3d at 1298. Therefore, the

trial court correctly denied Mueller’s first motion to suppress, and appellate counsel

did not perform deficiently by failing to raise the issue on direct appeal.

In his second motion to suppress, Mueller argued that all post-arrest

identifications were inadmissible because Officer Wireman’s police report included

two false statements. (Respondent’s Exhibit 18 at 1) First, Officer Wireman asserted

that Barnes had identified Mueller as “the subject who shot at his house.”

(Respondent’s Exhibit 18 at 1) Second, Officer Wireman stated that Sgt. Mackenzie

had “placed [Mueller] in the back seat of a marked patrol car.” (Respondent’s

Exhibit 18 at 1) Mueller contended that these allegedly false statements were

“necessary to the finding of probable cause for initial arrest.” (Respondent’s Exhibit

18 at 1) Based on these allegations, Mueller requested a Franks7 hearing. The trial

7 Franks v. Delaware, 438 U.S. 154 (1978).

court denied the motion because it “raised the same grounds that we’ve already gone

over in the original motion to suppress.” (Respondent’s Exhibit 12 at 9)

The second motion to suppress lacked merit. Therefore, appellate counsel did

not perform deficiently by failing to challenge the denial of the motion on direct

appeal. See Nyhuis, 211 F.3d at 1344 (“Appellate counsel is not ineffective for failing

to raise claims reasonably considered to be without merit.”). To justify a Franks

hearing, a defendant must “make[] a substantial preliminary showing” that an officer

made intentionally false or recklessly misleading statements necessary to a probable-

cause finding. Franks, 438 U.S. at 155–56. Mueller did not make the required

showing.

The first statement — that Barnes identified Mueller as the man who shot at

his house — was not false. Barnes was away from home during the shooting, but he

told police that he “knew” Mueller “did this” because during a phone call “just

prior” to the shooting, Mueller had “threatened to kill him.” (Respondent’s Exhibit

11 at 14, 55–56) Consequently, the first statement was accurate, and its inclusion in

the police report did not entitle Mueller to a Franks hearing.

Mueller argued that the second statement was false because Officer Wireman,

not Sgt. Mackenzie, “placed him in the back of the police car.” (Respondent’s

Exhibit 18 at 1–2) Even assuming this statement was false, Mueller cannot show it

was “necessary to the finding of probable cause.” Franks, 438 U.S. at 156.

The trial court correctly denied Mueller’s two motions to suppress. As a

consequence, appellate counsel did not perform deficiently by failing to challenge the

rulings on direct appeal. Ground two is denied.

VI. CONCLUSION

Mueller’s application for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk must enter a judgment against Mueller and CLOSE this case.

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Because Mueller fails to demonstrate either a substantial showing of the denial

of a constitutional right or that reasonable jurists would debate both the merits of the

grounds and the procedural issues, a certificate of appealability and leave to appeal in

forma pauperis ace DENIED. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

478 (2000). Mueller must obtain permission from the court of appeals to appeal in

forma pauperis.

ORDERED in Tampa, Florida, on March 7, 2024.

Alla donaageen

UNITED STATES DISTRICT JUDGE

-31-