West v. Secretary Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TODD CURTIS WEST,

Petitioner,

v. Case No. 3:20-cv-1361-HES-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

ORDER

I. Status

Petitioner Todd Curtis West, an inmate of the Florida penal system,

initiated this action by filing a Petition Under 28 U.S.C. § 2254 for Writ of

Habeas Corpus by a Person in State Custody (Doc. 1). Petitioner challenges a

state court (Duval County, Florida) judgment of conviction for armed burglary

with assault or battery. See id. Respondents filed a response (Response; Doc.

10), with exhibits (Resp. Exs.; Docs. 10-1 through 10-27). Petitioner filed a

reply (Doc. 18). This action is ripe for review.

II. 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). “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.” Jd, (quoting Greene v. Fisher, 565 U.S.

34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of

final state court decisions is “greatly circumscribed’ and ‘highly deferential.”

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

marks omitted)).

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. Jd. 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. ---, ---, 184 8.

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

v. Cain, 576 US. ---, ---, 185 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 --

-, 13848. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,

301, 180 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1328, 1887 (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 §. 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. 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)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2008), and 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.” Jd., at 687, 104.8. 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.” fd., at 694, 1048. 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 8S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Jd., 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 ---, 1315S.

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.” Jd. (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 US.

111, 128, 1298S. 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 ---, 1381S. 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).

III. Factual and Procedural History

These facts are taken from Petitioner’s initial brief filed on direct appeal:

Mr. West was charged by two-count amended

information with armed burglary with assault or

battery (count I), and with violation of an injunction

for protection against domestic violence (count IT). The

date of the alleged offenses was May 21, 2015.

On September 28, 2015, the State filed its first

Notice of Other Crimes, Wrongs or Acts Evidence,

advising Mr. West that it intended to introduce

evidence that: on or between the days of May 4, 2015

to May 15, 2015, Mr. West struck the alleged victim

with his fist; the alleged victim did not go the hospital

nor contact law enforcement because Mr. West

threatened that he would kill her if she contacted the

police; and that the alleged victim “kicked the

Defendant out of her home” due to the incident.

Defense counsel filed a motion to exclude the evidence.

A hearing was scheduled on the matter. At the

scheduled hearing, the State clarified its position and

stated that the proposed Williams Rule evidence

would only be relevant as rebuttal evidence or in

response to a defense line of questioning. The State

requested that the hearing be cancelled and that the

matter be addressed at trial if it became necessary.

The defense agreed that the issue could be addressed

at trial, but did not agree that the evidence would ever

be relevant or admissible at the trial. Further hearing

on the issue was cancelled at that time.

The State also filed four motions in limine.

Defense counsel stated he had no objection to motions

1, 2, and 4, and the parties reached [an] agreement as

to the State’s motion in limine 3.

The case proceeded to trial, and the jury was

chosen without objection.

The first witness called by the State was Mary

Cave. Cave, 54-years-old, testified that her address

was 5945 Joy Drive South, and that she had lived at

that address for five years. In May, 2015, Cave had

three dogs - a Pitbull Great Dane, a German Shepard,

and a German Shepard mix. Her backyard had a fence

around the perimeter.

Cave testified that she had known Mr. West for

ten years, and that they began dating in August, 2014.

She and Mr. West lived together in her house until she

asked West to leave on May 6, 2015. West took all of

his clothing but left various items in the house, and

left a toolbox in the driveway under the carport. West

referred to the tool box as a “gang box.” Four days after

West moved out, Cave changed the locks to her home,

and did not give West permission to come back inside

her residence. Three or four times after he moved out,

Mr. West came to get tools out of his gang box.

According to Cave’s testimony, on the afternoon

of May 21, 2015, her dogs drew her attention to the

front door of her house. When Cave looked out of the

window, she saw West’s motorcycle parked in the

driveway, and she heard noises that sounded to her

like the gang box being opened. Cave testified that she

turned away from the window, and she then heard

loud noises at the front door that sounded as if the door

was being broken down. Cave grabbed her revolver off

of the table and ran through the laundry room and out

the back door, taking her dogs with her. Cave testified

that she removed cinderblocks away from a hole in the

fence, and let the dogs go through the fence. She could

not go through the fence using the gate near the door

because she claimed there were cinderblocks in front

of the gate, in the driveway. She did not call “911.”

Cave testified that she “guesstimate[d]” she was

in the back yard a few minutes before she saw West on

the side porch. She said “please stop,” but West came

off of the porch towards her. Cave pointed the gun at

West, and fired. West did not stop but grabbed her

from behind and tried to get the gun from her. Cave

testified that West threw her on the ground and that

they struggled over the gun for five or ten minutes.

West got the gun away from Cave, and Cave testified

he threatened to kill her if she called the police. West

then went through the gate, and Cave continued to sit

where she was. She testified she received scrapes on

her elbow and knee from landing on the pavers when

she fell. Cave did not call the police, but her neighbor

Mr. Thigpen did so.

Cave testified that when she later looked at the

front of her house, there was damage to the front door,

and a broken window next to the front door. An ax[e]

that did not belong to Cave, was on the ground in front

of the window.

On cross examination, Cave admitted that West

had left the backyard through a gate she said she was

unable to go through because it was blocked with

cinderblocks. She also testified that she did not hear

Mr. West’s motorcycle when he arrived at her house

that day, nor when he left. Maybe five minutes after

West left, Cave’s neighbor Mr. Thigpen said her name

and she realized he was outside.

Ginny Burnside, next door neighbor to Mary

Cave, testified that on May 21, 2015, she heard and

saw Mr. West’s motorcycle as he pulled into Cave’s

driveway. West went toward the front of the house and

Burnside heard “banging.” Afterward, she heard Cave

and West yelling in the back of the house. Burnside

called “911” when she heard a gunshot; Cave

continued screaming after the gunshot. Burnside

testified that West walked down the driveway and she

heard his motorcycle as he drove away. From the time

West arrived to the time Burnside heard him driving

away was between five and ten minutes. A recording

of the “911” call was admitted into evidence and played

for the jury.

10

John Thigpenn testified that he was the back

neighbor of Cave’s, and that their backyards shared a

fence. On May 21, 2015, he heard what sounded like a

gunshot from a small caliber firearm. Thigpenn went

onto his back porch approximately 60 seconds after

hearing the gun shot. He did not see Cave or West at

that time, but Thigpenn called out Cave’s name two

times and, after she replied, he asked if she was okay

and whether what he heard was a gunshot. Cave

replied that it was a gunshot. After getting Cave’s

permission, Thigpenn called “911.” Thigpenn was not

sure where Cave was, but it sounded like she spoke to

him from inside her house. He thought she was

trapped in her house. It was not long after Thigpenn

heard the gunshot that he saw West drive away on his

motorcycle.

On cross-examination, Thigpenn testified that

he had never seen Cave’s dogs come through the hole

in his fence, nor did he see them come through the hole

on the day of the incident.

Mark Flores, with the Jacksonville Sheriffs

Office, was dispatched to the scene and found Ms.

Cave in front of her house. He questioned Cave about

what had occurred, and also looked around her house,

and spoke with her neighbors. Flores noted in his

report that Cave was using alcohol. The front window

of Cave’s house was broken, and there appeared to be

ax[e] marks on the front door. There was an ax[e]

located on the ground under the window. Flores asked

for a crime scene detective to further process the scene,

and that concluded his involvement in the case.

Steven Keeling, a crime scene detective with

the Jacksonville Sheriffs Office, was called to process

the scene in this case. Keeling noted that Cave had

some swelling to her face, and some abrasions or

scrapes to her right elbow. He photographed her

injuries, and also took photographs of the house and

11

yard. Keeling noted and photographed damage of the

deadbolt, the door knob, and the doorjamb, of the front

door. He also photographed the broken window, glass

inside the house which appeared to be from the

window, and what appeared to be blood on the window

sill. He collected a swab from the blood. Keeling also

photographed and swabbed blood on the rear porch

railing.

Jennifer Brown, crime laboratory analyst in

the biology section of the Florida Department of Law

Enforcement (FDLE). She received a buccal swab from

West, and a swab from a windowsill in this case, and

was asked to perform DNA testing of the items. Brown

testified that the DNA from the blood on the

windowsill was a match to West’s DNA profile. On

cross-examination, Brown admitted that she did not

perform testing on any other items submitted for

testing, including the swab from the ax[e] handle and

the swab from the railing, even though the Sheriff's

Office had requested that all items be tested. Brown

made the decision that it was not necessary.

The State rested its case, and defense counsel

moved for a judgment of acquittal, which was denied.

Defense counsel advised the trial court that Mr.

West wanted to testify, and the State’s position was

that if West testified it would “open the door” to

evidence of the injunction and to the Williams Rule

evidence. Defense counsel objected to the State’s

argument, and advised the judge that West was not

going to testify to anything that would “open the door,”

that West would testify only that he went over to

Cave’s house to get his tools, not that he was invited to

Cave’s house. He further argued that allowing

evidence of the injunction and Williams Rule evidence

would only amount to bad character evidence and

evidence of guilt of another offense which led to the

injunction, and was not relevant to proving the

burglary charged in count I[]. The defense reminded

12

the court that count JJ charging the injunction had

been bifurcated for trial to avoid prejudice to West.

Defense counsel further argued that if the court

accepted the State’s position and allowed the

injunction and Williams Rule evidence to be admitted

if West testified only that he went over to Cave’s

house, then West would be denied his right to present

a defense and denied his right to a fair trial.

West’s testimony was proffered out of the

presence of the jury: West testified that he went to

Cave’s residence because the gang box containing his

tools was in the carport. Cave was on the porch on the

other side of the fence, and the two of them began

arguing. Cave said she was going to shoot herself and

she went back into her house. West heard a gunshot

and panicked; he took the ax[e] out of his gang box and

used it to try and open the front door. He could not

open the door and so [he] broke out the front window.

Cave was standing by the window, pointing the gun at

West. West got on his motorcycle and left.

The State maintained its earlier position that

the testimony made evidence of the injunction

admissible; the defense argued that evidence of the

injunction was not probative in the burglary charge,

and that admitting the evidence would be unduly

prejudicial. The court ruled that the Williams Rule

evidence would be admissible if West testified

according to the proffer, but evidence of the injunction

would not be admissible. Defense counsel argued that

the Williams Rule evidence was not probative, not.

similar, but was only offered to show bad character

_ and propensity for violence on the part of West[ and

elven if the Williams Rule evidence was somewhat

relevant to prove intent, any probative value was

substantially outweighed by prejudicial impact.

Cave’s testimony was then proffered: Cave

testified that around May 4, 2015, Mr. West pushed

her from behind into a kitchen cabinet, causing her to

13

suffer injuries. She did not call the police, nor did she

go to the hospital. Cave claimed that West threatened

her to not call the police. It was because of this incident

that Cave told West to move out of her house. The

court ruled that if West testified according to the

proffer, then the State would be allowed to present

Cave’s testimony on rebuttal. Defense counsel

renewed his objection to the ruling.

Appellant West testified that he and Cave had

been in a relationship and had lived together for two

years prior to May, 2015. She did not work during this

time. West was employed in a job which required him

to work with tools that he owned. He kept his tools in

a gang box, which is a “four by four by six” box with a

locked lid. The tools inside the gang box had a

combined value of approximately $40,000.

On the day of May 21, 2015, West drove his

motorcycle to Cave’s house, and walked towards his

gang box. He saw Cave behind the fence on the porch.

Cave and West spoke to each other, and Cave’s speech

was slurred and she was argumentative. They began

yelling at each other, and Cave eventually went into

her house.

When defense counsel asked West if Cave said

anything prior to going inside, the State objected that

the question called for hearsay. Defense counsel

argued that it was not hearsay as it was not being

offered to prove the truth of the matter asserted, that

it was offered to show the [e]ffect on West and why he

did what he did afterward. The court sustained the

State’s objection.

West’s testimony continued: Prior to Cave going

inside her house, something caused West to become

alarmed. After Cave went inside, West heard a

gunshot from inside the house, and thought that Cave

had shot herself. He panicked and grabbed the ax[e]

out of his gang box, and tried to open the locked front

14

door using the ax[e]. When he could not open the front

door, West used the ax to break the window. Cave was

standing at the window, pointing the gun at West.

West immediately got on his motorcycle and left.

During the State’s cross-examination of West

concerning letters he had written to Cave after his

arrest, the following occurred:

Q [the prosecutor] And you remember writing her

[Cave] and telling her to tell the police, tell at her

deposition, and tell the State that, in fact, you were

invited over to the house, is that correct?

A [Appellant West] Yes, I was invited.

Q You were invited May 21, 2015, sir?

AI had been going there to get my tools for the job at

Fed-Ex for two weeks and then bringing them back.

The State argued that West’s testimony opened the

door to evidence of the injunction. Over defense

objection, the court ruled evidence of the injunction

could be admitted. The State then questioned Mr.

West about the injunction in place which prevented

him from coming within 500 feet of Cave’s residence,

and asked him if he directly defied the order, to which

West tried to explain that Cave had allowed him to

come over to get his tools so that he could work.

The defense rested its case.

Prior to the State presenting its rebuttal case,

defense counsel moved for a mistrial based on the

court requiring West to walk up to the witness stand

in the presence of the jury, wearing a leg brace which

kept his knee in a locked position. The defense argued

that the affected walk was prejudicial. The court

denied the motion, finding that it was not prejudicial.

15

Over defense renewed objection, the State

presented the testimony of Mary Cave on rebuttal.

Cave testified that on May 4, 2015, while she was still

in a relationship with Mr. West, he pushed her into a

kitchen cabinet, causing her to “split [her] head open.”

Cave further testified that West told her that if she

called the police it would be the worst thing she could

do. She did not call the police. Afterward, she kicked

West out of the house and obtained an injunction to

prevent him from coming back to her house.

During its closing and rebuttal closing

argument, the prosecutor repeatedly argued evidence

of the injunction, and argued that nothing, not evena

court order, was going to keep West from going onto

Cave’s property.

The jury was instructed without objection. After

the jury retired to deliberate, Mr. West entered a plea

to count II, the charge of violation of an injunction.

The jury found Mr. West guilty of burglary, with

specific findings that the structure was a dwelling,

that West committed an assault or battery during the

offense, and that he was armed or armed himself with

a deadly weapon during the course of committing the

offense. The jury specifically found that West did not

actually possess a firearm during the commission of

the offense.

Mr. West filed a pro se motion for new trial,

which included complaints about his attorney’s

performance. West filed an addition to his motion for

new trial, and included a copy of a letter he had

written to his trial attorney complaining about his

representation. Prior to sentencing, Mr. West filed a

pro se amended motion to withdraw his plea to the

violation of injunction charge, and included an

unequivocal request to discharge his trial counsel. Mr.

West also wrote a letter to the trial judge complaining

of his attorney’s performance.

16

At the hearing on January 28, 2016, the State

brought to the court’s attention West’s request to

discharge counsel which he included in his pro se

motion to withdraw plea. The State asked the court to

determine whether West wanted to discharge his

counsel at that time. Mr. West stated, “Yes, Your

Honor, I do.” A sidebar discussion was had between

the court, defense counsel, and the State, without the

presence of the court reporter. Afterward, the record

notes that a discussion was had between West and his

defense attorneys, after which defense counsel

requested to approach the court, and another off-the-

record sidebar discussion was had. Defense counsel

then advised the court that he was not adopting any

motions filed by Mr. West at that time, but was

making an oral motion to allow Mr. West to withdraw

his plea to count 2 of the information, the violation of

the injunction. With no objection by the State, the trial

court granted the motion to withdraw plea to count 2

of the information. Afterward, the State entered a nol-

pros to count 2.

With no further discussion of Mr. West’s pro se

motions, his request to discharge counsel, or his letters

to the judge, the court denied the motion for new trial

filed by defense counsel, and the case proceeded to

sentencing. The court adjudicated Mr. West guilty of

armed burglary with assault or battery, and sentenced

him to 15-years incarceration, to be followed by 2-

years probation for West to complete the Phoenix

House residential treatment program.

Resp. Ex. 13 (record citations omitted).

17

IV. The Petition

a. Ground One

Petitioner argues that his trial counsel was ineffective for failing to file

a “motion for arrest of judgment and motion for new trial” on the theory that

the verdict form was inconsistent with the Information as the Information did

not charge Petitioner with the offense for which he was found guilty. Doc. 1 at

5. Specifically, Petitioner contends count one of the Information charged him

with armed burglary with a firearm, but the jury found Petitioner guilty of

armed burglary while also finding he did not possess a firearm during the

offense, which he argues is logically inconsistent. Doc. 18 at 25.

Petitioner raised this claim in his Florida Rule of Criminal Procedure

3.850 motion filed in state court. Resp. Ex. 19 at 2. The trial court summarily

denied the claim as follows:

In Ground One, Defendant alleges counsel was

ineffective for failing to object to the verdict form.

Specifically, Defendant complains counsel was

deficient because the verdict form allowed the jury to

find that Defendant armed himself with a “dangerous

weapon or a firearm” but the information only alleged

a firearm. Defendant claims prejudice because the jury

found that he did not possess a firearm during the

commission of the offense while also finding that he

armed himself with a dangerous weapon during the

commission of the offense.

18

The State charged Defendant as follows:

TODD CURTIS WEST on May 21, 2015,

in the County of Duval and the State of

Florida, did unlawfully enter or remain in

a structure or conveyance, to wit: a

dwelling, the property of M.A.C., with the

intent to commit an offense therein, and

while in the course of the burglary was or

became armed with explosives or a

dangerous weapon, to wit: firearm, within

said dwelling, and/or made an assault or

battery upon another, to-wit: M.A.C., and

during the commission of the burglary the

said TODD CURTIS WEST did actually

possess a firearm, contrary to the

provisions of Sections 810,02(2)(a),

810.02(2)(b) and 775.087(2)(a)1, Florida

Statutes.

This information is legally sufficient because it

“tracked the language of the statute, clearly charged

the essential elements of the crime, and sufficiently

advised [Defendant] of the specific crime with which

he was charged.” Price v. State, 995 So. 2d 401, 405

(Fla. 2008). Use of a weapon during a burglary is a

sentencing enhancement, Aroche v. State, 993 So. 2d

568, 569 (Fla. 3d DCA 2008), so any technical defect in

the information was cured by evidence that Defendant

armed himself with an axe during the burglary. See

Robinson v. State, 215 So. 3d 1262, 1266-74 (Fla. lst

DCA 2017) (“Here, any defect in the charging

document, namely failure to allege ‘great bodily harm’

as opposed to ‘bodily harm’ was cured by the victim’s

testimony at trial and the jury verdict.”)[.] Even if

counsel had successfully objected to the verdict form

based upon the information, the State would have

been able to amend the information to cure the defect.

Lenoir v. State, 804 So. 2d 507, 508-09 (Fla. 3d DCA

2001). Thus, Defendant cannot demonstrate prejudice

because any objection would have led to the same

19

result — a conviction on the merits. Williams v. State,

182 So. 3d 11, 16 (Fla. 3d DCA 2015). And, because

there is record support for the jury’s findings, his

sentence is not illegal.

Defendant was only convicted on armed

burglary, so there cannot be a double jeopardy

violation. Accordingly, he is not entitled to relief on

Ground One.

Resp. Ex. 21 at 2 (record citations omitted). Petitioner appealed the trial court’s

denial, and the First District Court of Appeal per curiam affirmed the order

without a written opinion. Resp. Ex. 24.

The Court addresses the claim under the deferential standard for federal

court review of state court adjudications. In doing so, the Court notes that

inconsistent verdicts are not in and of themselves proof of a constitutional

violation. See United States v. Mitchell, 146 F.3d 1338, 1344 (11th Cir. 1998)

(concluding that “as long as the guilty verdict is supported by sufficient

evidence, it must stand, even in the face of an inconsistent verdict on another

count”). Here, sufficient evidence supported the jury’s verdict. Indeed, at trial,

the evidence showed Petitioner used an axe to force his way into the

surrounding curtilage of the victim’s home before he physically attacked her.

The trial court instructed the jury that if it found Petitioner guilty of burglary,

“it must also determine whether in the course of committing the burglary,

[Petitioner] was armed or armed himself within the structure with a dangerous

weapon’; and defined a dangerous weapon as “any weapon that taking into

20

account the manner in which it is used, is likely to produce death or great

bodily harm.” Resp. Ex. 7 at 95. It then instructed that “arm[ing] oneself during

the course of a burglary include[d] possessing a firearm,” and that if the jury

found the state proved beyond a reasonable doubt that during the offense

Petitioner actually possessed a firearm, it should make that specific finding as

well. Jd. Considering the evidence and the instructions, the jury could have

chosen to believe the axe constituted a dangerous weapon used during the

burglary while also believing Petitioner did not arm himself with a firearm

during the offense. Thus, Petitioner cannot show that but for counsel’s alleged

error, the outcome of his case would have been different.

Consequently, upon thorough review of the record and the applicable

law, the Court finds that the state court’s decision to deny Petitioner’s claim

was neither contrary to nor an unreasonable application of Strickland, and it

was not based on an unreasonable determination of the facts given the

evidence presented to the state court. This claim is denied.

b. Ground Two

Petitioner asserts his trial counsel was ineffective for failing to establish

Petitioner’s entitlement to an acquittal on the armed burglary charge because

the state failed to prove he armed himself with a dangerous weapon or a

firearm. Doc. 1 at 6.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 19 at 5.

21

The trial court summarily denied the claim, finding as follows:

In Ground Two, Defendant alleges counsel was

ineffective for failing to argue that there was no

evidence that Defendant armed himself with a firearm

or axe. In resolving Ground One, this Court addressed

the State’s evidence regarding the axe. In sum, the

victim’s front door had been damaged by an axe, and

the door had not been damaged before Defendant’s

arrival. Thus, in the light most favorable to the State

there was sufficient evidence that Defendant

possessed an axe. Lynch v. State, 293 So. 2d 44, 45-46

(Fla. 1974) (citations omitted). Accordingly, Defendant

is not entitled to relief on Ground Two.

Resp. Ex. 21 at 3 (record citations omitted). Petitioner appealed the trial court’s

denial. Resp. Ex. 22. Respondents erroneously argue that Petitioner failed to

exhaust this claim because when briefing his issues on appeal, Petitioner failed

to discuss this claim. Resp. at 44. But relying on the persuasive authority in

Cortes, the Court declines to find this claim, or any other claim not discussed

in Petitioner’s postconviction appeal brief, unexhausted, because “a petitioner

who does file a brief in an appeal of the summary denial of a Rule 3.850 motion

does not waive any issues not addressed in the brief.”! Cortes v. Gladish, 216

F. App’x 897 (11th Cir. 2007); see also Fla. R. App. P. 9.141 (briefs are not

required upon summary denial of postconviction motions); Darity v. Sec’y, Dep’t

1 Respondents also argue that Grounds Seven, Eight, Nine, Ten, and “A-One”

are unexhausted because Petitioner did not discuss those claims in his postconviction

appeal. Resp. at 60. But as explained in the Court’s analysis of Ground Two, the Court

declines to find those claims unexhausted.

22

of Corr., 244 F. App’x 982, 984 (11th Cir. 2007) (opining a defendant who

chooses to file a brief upon summary denial of his postconviction motion is not

required to raise all claims).2 Thus, because Petitioner appealed, and First

DCA per curiam affirmed the trial court’s summary denial without a written

opinion, Resp. Ex. 24, the claim is exhausted and properly before the Court.

To that end, the Court addresses the claim under the deferential

standard for federal court review of state court adjudications. And for the

reasons discussed in Ground One, upon thorough review of the record and the

applicable law, the Court finds that the state court’s decision to deny

Petitioner’s claim was neither contrary to nor an unreasonable application of

Strickland, and it was not based on an unreasonable determination of the facts

given the evidence presented to the state court. This claim is denied.

c. Ground Three

Petitioner argues that his trial counsel was ineffective for failing to

investigate and present exculpatory evidence of 911 calls that refute the

timeline of the alleged burglary. Doc. 1 at 8.

2 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.”).

23

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 19 at 7.

The trial court summarily denied the claim as follows:

In Ground Three, Defendant alleges counsel was

ineffective for failing to present exculpatory evidence.

Specifically Defendant argues counsel was deficient

because the timing of 911 calls showed he was only at

the victim’s home for less than a minute. Defendant

claims prejudice because this evidence would have

rebutted the State’s timeline.

Defendant[’s] argument is based upon the

testimony of two neighbors who called 911. Both heard

an argument, followed by a gunshot, followed by a

motorcycle driving away. One heard an argument and

saw Defendant before the gunshot; the other only

became aware of the argument after hearing the

gunshot.

Defendant’s claim fails because neither 911 call

established a timeline for the entire altercation

between Defendant and the victim; the calls only

established a timeline for what happened after the

gunshot had been fired. Both Defendant and the

victim did testify, and their testimony put Defendant

at the victim’s house for far more than a minute. The

victim testified that she saw Defendant’s motorcycle

and heard him going through his gang box. She

grabbed her revolver after hearing a loud sound from

her front door, and she went out to the backyard.

Defendant confronted her a few minutes later, and she

fired when he charged her. They wrestled for the gun

for approximately “five to ten minutes,” until

Defendant took it from her. Defendant threatened her

then left through the gate. Later, she saw that a

window had been broken and her front door had been

damaged. Neither had been damaged before

Defendant came over.

24

Defendant testified that he rode his motorcycle

to the victim’s home. She was in the backyard, and she

seemed drunk. They argued, she went inside, and then

he heard a gunshot. He grabbed an axe out of his gang

box, went to the front door, and “chopped the doorknob

off.” He still could not get inside, so he ran to a window

and broke it. He saw the victim standing inside with a

gun, and she was aiming it at him. He got onto his

motorcycle and left.

Other than her statement about wrestling with

the gun for “five to ten minutes,” the 911 calls were in

no way inconsistent with the victim’s testimony.

Further, Defendant’s own testimony put him at the

scene for longer than a minute after the shooting

because he had time to go to his gang box, chop at the

front door, and then break a window. Thus, there is no

reasonable possibility the ultimate outcome of

Defendant's case would have been different had

counsel investigated and presented “the actual time of

the 911 calls.” Accordingly, Defendant is not entitled

to relief on Ground Three.

Resp. Ex. 21 at 2 (record citations omitted). Petitioner appealed the trial court’s

denial, and the First DCA per curiam affirmed the order without a written

opinion. Resp. Ex. 24.

The Court addresses the claim under the deferential standard for federal

court review of state court adjudications. And upon thorough review of the

record and the applicable law, the Court finds that the state court’s decision to

deny Petitioner’s claim was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

25

determination of the facts given the evidence presented to the state court. This

claim is denied.

d. Ground Four

Petitioner alleges his trial counsel was ineffective for failing to call

several witnesses during trial. Doc. 1 at 10.

Petitioner raised this claim in this Rule 3.850 motion. Resp. Ex. 19 at 9.

The trial court summarily denied the claim, finding as follows:

First, Defendant alleges counsel should have

called Jerry Garett and Lynn Thomas. They would

have testified that Defendant never moved out of the

house he shared with the victim; he was house-sitting

while they took a vacation, was overseeing pool

construction at their home, and taking care of their

dog. The victim had previously accused Lynn and

Defendant of having an affair while on vacation.

Defendant argues this testimony would have

established the victim’s state of mind and bias against

Defendant.

Other than the victim’s allegations about

Defendant having an affair, none of Garett or

Thomas’s testimony would have been admissible or

relevant. See generally § 90.608, Fla. Stat. (2015); see

also Pintado v. State, 970 So. 2d 857, 859-60 (Fla. 3d

DCA 2007) (“Here, the defense sought to call witnesses

to impeach the victim on collateral matters such as

drug use. The trial court did not abuse its discretion

by prohibiting this improper impeachment.” (citing

Ruland v. State, 614 So. 2d 537 (Fla. 3d DCA 1998)){].

And, while any prior allegations of infidelity may have

been relevant as to bias, Gibson v. State, 661 So. 2d

288, 291 (Fla. 1995), there is no reasonable possibility

the outcome of Defendant’s trial would have been

different had counsel introduced this evidence. Both of

26

the witnesses who called 911 testified that Defendant

left immediately after the gunshot had been fired, and

one spoke to the victim as she lay in her backyard.

Their testimony corroborated the victim’s version of

events while rebutting Defendant[’]s, and it was

already clear from the victim’s testimony that she had

an acrimonious split with Defendant.

Second, Defendant alleges counsel failed to

obtain transcripts of depositions with police officers.

These depositions showed that Defendant never

moved out of the residence. As will be addressed in

Ground Eight, whether or not Defendant moved out of

the residence had no legal bearing on the case.

Further, Defendant fails to allege what specific

testimony the officers gave in their depositions and

what their testimony would have been at trial. Thus,

his claim is insufficient. See Howard v. State, 17 So. 3d

774, 776 (Fla. 2d DCA 2009). Because he has already

been granted leave to amend, he is not entitled to

relief. Thompson v. State, 44 Fla. L. Weekly D1012

(Fla. lst DCA April 22, 2019).

Third, Defendant alleges counsel should have

called David Smith, the victim’s backyard neighbor.

Smith would have testified that the victim’s dogs loved

Defendant and played with him. This would have

impeached the victim’s statement that Defendant did

not play with the dogs. Smith would have also testified

that there was a four-foot hog wire fence between the

yards and he had seen the victim step over the fence.

This would have shown that the victim was not

trapped in her backyard by Defendant. Joshua West

and Shelby West would have given similar testimony

regarding the dogs. This impeachment would have

involved collateral matters, so it was not admissible.

Pintado, 970 So. 2d at 859-60. Whether or not the

victim was trapped in her backyard had no bearing on

the charges, so counsel was not ineffective for failing

to call Smith as a witness.

27

Fourth, Defendant alleges counsel should have

called Joshua West and Matt Krauer to testify about a

prior incident between Defendant and the victim when

she had shot him in the hand. This would have

impeached the victim’s claims about her kicking

Defendant out and would instead have established

that Defendant broke up with her. Again, this would

have involved impeachment on a collateral matter. Id.

Accordingly, Defendant is not entitled to relief on

Ground Four.

Resp. Ex. 21 at 5-7 (record citations omitted). Petitioner appealed the trial

court’s denial, and the First DCA per curiam affirmed the order without a

written opinion. Resp. Ex. 24.

The Court addresses the claim under the deferential standard for federal

court review of state court adjudications. Upon thorough review of the record

and the applicable law, the Court finds that the state court’s decision to deny

Petitioner's claim was neither contrary to nor an unreasonable application of

Strickland, and it was not based on an unreasonable determination of the facts

given the evidence presented to the state court. This claim is denied.

e. Ground Five

Petitioner alleges his trial counsel was ineffective for failing to object to

the state’s questioning of Burnside and for failing to impeach Burnside with

statements she made during her 911 call. Doc. 1 at 11; Doc. 18 at 36.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 19 at 15.

The trial court summarily denied the claim as follows:

28

In Ground Five, Defendant alleges counsel was

ineffective for failing to object. Specifically, Defendant

alleges counsel was deficient for failing to object to

leading questions from the state. Defendant claims

prejudice because the objection would have prevented

the State from bolstering the victim’s testimony.

The gist of Defendant’s claim is that counsel

should have impeached one of the 911 callers with

inconsistencies and/or fabrications between her trial

testimony and the call itself. However, because the

jury heard both the 911 call and the victim’s

testimony, there is no reasonable possibility the

outcome of Defendant’s trial would have been different

had counsel focused more questions on these matters.

As to Defendant’s claim that the trial transcripts

were doctored, Defendant has failed to allege or

demonstrate prejudice. The order of evidence and the

examination of witnesses is a discretionary matter

with no effect on the substance of testimony. Brown v.

State, 25 So. 68, 65 (Fla. 1898). Accordingly, Defendant

is not entitled to relief on Ground Five.

Resp. Ex. 21 at 7 (record citations omitted). Petitioner appealed the trial court’s

denial, and the First DCA per curiam affirmed the order without a written

opinion. Resp. Ex. 24.

The Court addresses the claim under the deferential standard for federal

court review of state court adjudications. Upon thorough review of the record

and the applicable law, the Court finds that the state court’s decision to deny

Petitioner’s claim was neither contrary to nor an unreasonable application of

Strickland, and it was not based on an unreasonable determination of the facts

given the evidence presented to the state court. Also, to the extent that

29

Petitioner attempts to raise, for the first time, a Giglio claim in his reply brief,

arguments raised for the first time in a reply brief are not properly before a

reviewing court. See Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 13842 (11th

Cir. 2005) (citations omitted). Thus, any such Giglio claim will not be

addressed. Ground Five is denied.

f. Ground Six

Petitioner asserts his trial counsel was ineffective for failing to

investigate and discredit the state’s evidence that DNA from blood found at the

scene matched Petitioner. Doc. 1 at 11; Doc. 18 at 38.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 19 at 18.

The trial court denied the claim as follows:

In Ground Six, Defendant alleges counsel was

ineffective for not challenging the States DNA

evidence. Specifically, Defendant argues counsel was

deficient because Defendant informed counsel that his

DNA was not present. Defendant claims prejudice

because this false evidence contributed to his

conviction.

Jennifer Brown, a qualified expert on DNA

matters employed by the Florida Department of Law

Enforcement, testified that blood found on the

windowsill matched DNA taken from Defendant’s

buccal swab. Because investigators relied upon a

buccal swab, it is irrelevant whether or not they ever

took Defendant’s blood. Further, Defendant took the

stand and admitted to picking up the axe and chopping

away at the victim’s front door. Thus, even if his DNA

was not on it, he admitted to possessing it.

30

Accordingly, counsel was not ineffective and

Defendant is not entitled to relief on Ground Six.

Resp. Ex. 21 at 7 (record citations omitted). Petitioner appealed the trial court’s

denial, and the First DCA per curiam affirmed the order without a written

opinion. Resp. Ex. 24.

The Court addresses the claim under the deferential standard for federal

court review of state court adjudications. In doing so, the Court defers to the

state court’s finding that a challenge to the DNA evidence would have been

irrelevant considering Petitioner testified that he was at the victim’s home

during the incident and attempted to break the window using an axe. Resp.

Ex. 7 at 21. Petitioner also testified that he cut his hand on the broken glass

when he climbed through the window. Jd. As such, upon thorough review of

the record and the applicable law, the Court finds that the state court’s decision

to deny Petitioner’s claim was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

determination of the facts given the evidence presented to the state court. This

claim is denied.

f. Ground Seven

Petitioner argues that his trial counsel was ineffective for allowing the

state to access confidential information, which required Petitioner to take the

stand, allowing the state to present Williams Rule evidence and letting the

31

jury to see him in leg restraints. Doc. 1 at 12; Doc. 18 at 49; Resp. Ex. 19 at 21-

29.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 19 at 21.

The trial court summarily denied the claim as follows:

In Ground Seven, Defendant alleges counsel was

ineffective for allowing the State to access confidential

information. Specifically, Defendant argues counsel

was deficient because the State had access to a map of

the victim’s backyard as well as letters exchanged

between Defendant and counsel. Defendant claims

prejudice because this required him to take the stand,

allowing the State to introduce Williams evidence.

After counsel announced Defendant would be

taking the stand, the State argued that his testimony

would open the door to evidence that an injunction had

been entered against him barring him from being on

the victim’s property. The State also argued that prior

acts of domestic violence committed by Defendant

would be admissible if he took the stand, and this

Court agreed. This Court also ruled that Count One

would remain bifurcated from Count Two. While cross-

examining Defendant, the State relied upon letters

written by Defendant to the victim, not letters written

by Defendant to counsel.

As for the Williams evidence, it was this Court’s

actions, not counsel’s, that led to its admission. A

defendant may not backdoor claims of trial court error

through a claim of ineffective assistance of counsel.

See Dowling v. State, 796 So. 2d 1195, 1195-96 (Fla.

4th DCA 2001). Further, as this Court has already

noted, Defendant took the stand and admitted to going

to the victim’s home. This Court did not let the jury

hear evidence about the injunction until Defendant

claimed he had permission to be on the premises. As

will be addressed in Ground Eight, counsel could not

32

argue that Defendant had permission to be on the

victim’s premises because of the injunction, and, as

Defendant's testimony proved, arguing that

Defendant did have permission to be on the premises

would open the door to the injunction’s admission.

Defendant makes additional assertions against

counsel, but all of these grievances are insufficiently

pled. Because Defendant has already been granted

leave to amend, these allegations fail as a matter of

law. Thompson, 44 Fla. L. Weekly D1012. There was

no double jeopardy violation. Accordingly, he is not

entitled to relief on Ground Seven.

Resp. Ex. 21 at 8-9 (record citations omitted). Petitioner appealed the trial

court’s denial. Resp. Ex. 22. And the First DCA per curiam affirmed the trial

court’s summary denial without a written opinion. Resp. Ex. 24.

The Court addresses the issues under the deferential standard for

federal court review of state court adjudications. In doing so, the Court defers

to the state court’s finding that Petitioner’s own testimony that he had

permission to be at the victim’s home opened the door to the state’s

presentation of the domestic violence injunction against Petitioner. As to

Petitioner's claim that counsel should have objected to the jury seeing him in

leg restraints, the record shows trial counsel moved for a mistrial when the

trial court denied counsel’s request to move Petitioner to the witness stand

before the jury returned to the courtroom because a knee restraint affected

Petitioner's walk. Resp. Ex. 7 at 29-30. The trial court denied that motion,

finding the defense suffered no prejudice. Jd. at 30. And considering the

33

overwhelming evidence establishing Petitioner committed the offense,

Petitioner has not shown a reasonable probability that without the jury seeing

his leg restraint, it would not have found him guilty. See, e.g., Hughlon v.

Florida, No. 21-14001, 2022 WL 17494866, at *4 (11th Cir. 2022) (explaining

“the petitioner was required to show a reasonable probability that, without

being visibly shack[lJed, the jury would not have convicted him and [ ] he [ ]

failed to meet that standard because the evidence against him was

‘overwhelming’”’)

Thus, upon thorough review of the record and the applicable law, the

Court finds that the state court’s decision to deny Petitioner’s claim in ground

seven of his Rule 3.850 motion was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

determination of the facts given the evidence presented to the state court.

Ground Seven is denied.

g. Ground Eight

Petitioner alleges his trial counsel was ineffective for failing to ensure

the jury understood that he had not moved out of the home he shared with the

victim, he had a superior possessory interest, and he paid the bills. Doc. 1 at

12.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 19 at 29.

The trial court summarily denied the claim as follows:

34

In Ground Eight, Defendant alleges counsel was

ineffective for failing to make sure the jury knew

Defendant had not moved out of the home.

Specifically, Defendant argues counsel was deficient

because the injunction was obtained under false

pretenses. Defendant claims prejudice because a

person cannot burgle their own home.

Defendant is not entitled to relief because his

claim fails as a matter of law:

[ ] Whether a husband who has

shared a house with his wife but is

retrained by court order form entering the

property can be charged with burglary

when he enters the premises with intent

to commit a crime.

.. Ld

The most relevant case in Florida is

Cladd v. State, 398 So. 2d 442 (Fla. 1981).

In Cladd the court held that a defendant

could be guilty of burglary of his estranged

wife’s apartment when the defendant was

physically but not legally separated from

his wife and entered an apartment

possessed only by the wife in which he had

no ownership or possessory interest. The

trial judge in the instant case

distinguished Cladd because the wife in

Cladd was in the sole possession of the

premises.

There are some cases from other

jurisdictions which are instructive. In

Matthews v. Commonwealth, 709 S.W.2d

414 (Ky. 1985), cert. denied, 479 U.S. 871,

107 S. Ct. 245, 98 L.Ed.2d 170 (1986),

Matthews and his wife had rented a house

from the wife’s brother. The house was to

35

be used as the marital residence when the

parties were not separated. There,

however, were repeated periods of

separation. When the parties separated,

Matthews lived with his mother. In the

five weeks prior to the murders, the wife

had procured two separate warrants

against Matthews. Matthews had been

arrested on the first warrant and released

under a court order forbidding him further

contact with the wife. Matthews entered

the house and murdered his wife and

stepdaughter. The court held that

Matthews could be found guilty of

burglary because he invaded _ the

possessory property right of another.

Likewise, the majority of cases have

recognized that a spouse who has a legal

interest in the property but not a current

possessory interest can be charged with

burglary. A court order can negate a

person’s right to enter the premises even

if that person owns the premises.

[....]

State v. Suarez-Mesa, 662 So. 2d 735, 736 (Fla. 2d DCA

1995) (citations omitted). Regardless of whether or not

Defendant had moved out of the victim’s home, he

could not ignore the court order barring him from the

premises. Vizzi v. State, 501 So. 2d 613, 618-19 (Fla.

3d DCA 1986). The issue was whether or not

Defendant intended to commit a crime when he

entered the victim’s property; he did not have a legal

right to be there, nor was he invited. E.g., Faulk v.

State, 222 So. 3d 621, 622-24 (Fla. lst DCA 2017).

Accordingly, counsel was not ineffective, and

Defendant is not entitled to relief on Ground Eight.

36

Resp. Ex. 21 at 9-10 (record citations omitted). Petitioner appealed the trial

court’s denial, Resp. Ex. 22, and First DCA per curiam affirmed the summary

denial without a written opinion, Resp. Ex. 24.

The Court addresses the claim under the deferential standard for federal

court review of state court adjudications. Under Florida law, “burglary’ [can]

mean|[] . . . [njotwithstanding a licensed or invited entry, remaining in a

dwelling, structure, or conveyance [a]lfter permission to remain therein has

been withdrawn, with the intent to commit an offense therein... .” §

810.02(1)(b)2b, Fla. Stat. Here, the victim testified that before the incident, she

had kicked Petitioner out of the home; he removed all his belongings and

clothing when he left; she changed the locks on the house; and she did not give

Petitioner permission to come back inside her residence. Resp. Ex. 6 at 29-30.

Petitioner testified that he had been “invited” to the house because he still had

access to his tools; however, that testimony was impeached when the state

elicited testimony from Petitioner that on the day of the incident, he knew the

victim had an injunction prohibiting him from coming with 500 feet of the

victim’s residence. Resp. Ex. 7 at 20-25. Considering that evidence, Petitioner

has not shown that but for counsel’s alleged errors, the outcome of his trial

would have been different.

Upon thorough review of the record and the applicable law, the Court

finds that the state court’s decision to deny Petitioner’s claim was neither

37

contrary to nor an unreasonable application of Strickland, and it was not based

on an unreasonable determination of the facts given the evidence presented to

the state court. Ground Eight is denied.

g. Ground Nine

Petitioner challenges “the court’s negligen|[cle, indif[flerence, and bias to

judicial duty.” Doc. 1 at 13.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 19 at 32.

The trial court denied the claim, finding as follows:

In Ground Nine, Defendant alleges multiple

instances of trial court error. His claims are not

cognizable in a motion for postconviction relief.

Swanson v. State, 984 So. 2d 629, 630 (Fla. 1st DCA

2008).

Resp. Ex. 21 at 10. Petitioner appealed the trial court’s denial. Resp. Ex. 22.

And the First DCA per curiam affirmed the summary denial without a written

opinion. Resp. Ex. 24. As such, the Court addresses the claim under the

deferential standard for federal court review of state court adjudications. Upon

thorough review of the record and the applicable law, the Court finds that the

state court’s decision to deny Petitioner’s claim was neither contrary to nor an

unreasonable application of clearly established federal law, and it was not

based on an unreasonable determination of the facts given the evidence

presented to the state court. Ground Nine is denied.

h. Ground Ten

38

Petitioner alleges that he is entitled to a new trial based on the

cumulative effect of the ineffective assistance of counsel, prosecutorial

misconduct, and trial court error claims raised in Grounds One through Nine.

Doc. 1 at 13.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 19 at 38.

The trial court denied the claim as follows:

In Ground Ten, Defendant alleges cumulative

error. “[W]here individual claims of error alleged are

either procedurally barred or without merit, the claim

of cumulative error must fail.” Griffin v. State, 866 So.

2d 1, 22 (Fla. 2008) (citing Downs v. State, 740 So. 2d

506, 509 n.5 (Fla. 1999)).

Resp. Ex. 21 at 11. Petitioner appealed the trial court’s denial, Resp. Ex. 22,

and the First DCA per curiam affirmed the summary denial without a written

opinion, Resp. Ex. 24.

As such, the Court addresses the claim under the deferential standard

for federal court review of state court adjudications. “The cumulative error

doctrine provides that an aggregation of non-reversible errors (i.e., plain errors

failing to necessitate reversal and harmless errors) can yield a denial of the

constitutional right to a fair trial, which calls for reversal.” United States v.

Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (internal quotation marks

omitted). The Eleventh Circuit addresses “claims of cumulative error by first

considering the validity of each claim individually, and then examining any

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errors that [it] find[s] in the aggregate and in light of the trial as a whole to

determine whether the appellant was afforded a fundamentally fair trial.”

Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). Because

the Court has determined that none of Petitioner’s individual claims of error

or prejudice have merit, Petitioner’s cumulative error claim cannot stand. See

United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005) (“[There being]

no error in any of the district court’s rulings, the argument that cumulative

trial error requires that this Court reverse [the defendant’s] convictions is

without merit.”). Accordingly, the Court finds 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. Petitioner’s claim of

cumulative error is denied.

i. Ground A - One

Petitioner argues that his trial counsel was ineffective for failing to

investigate and adequately identify the defects in the Information. Doc. 1 at

14. According to Petitioner, the Information was defective because charging

and convicting Petitioner with both armed burglary with assault or battery

and violation of a domestic violence injunction violated his double jeopardy

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rights, and bifurcating the counts but allowing the state to present evidence of

the injunction highlighted this violation. Jd.

Petitioner raised a version of this claim in ground seven of his Rule 3.850

motion. Resp. Ex. 19 at 27. Before the trial court issued his Rule 3.850 order,

Petitioner again raised this claim in a filing titled “Asking for the Court’s Leave

for Addition to Amended Motion for Postconviction Relief,” filed on May 22,

2019 (mailbox rule). Resp. Ex. 20 at 2. In the trial court’s order, it explained it

was summarily denying both Rule 3.850 motions, including the May 22, 2019

motion. Resp. Ex. 21 at 1, 11. In addressing the double jeopardy allegation, the

trial court explained: “Defendant was only convicted on armed burglary, so

there cannot be a double jeopardy violation.” Jd. at 3. Petitioner appealed the

trial court’s denial. Resp. Ex. 22, and the First DCA per curiam affirmed the

summary denial without a written opinion, Resp. Ex. 24.

Petitioner again raised this claim in terms of ineffective assistance of

appellate counsel in his Florida Rule of Appellate Procedure 9.141 petition filed

with the First DCA. Resp. Ex. 25 at 2. The First DCA per curiam denied that

petition on the merits. Resp. Ex. 26.

As such, the Court addresses the claim under the deferential standard

for federal court review of state court adjudications. The Double Jeopardy

Clause of the Fifth Amendment protects against: (1) a second prosecution for

the same offense after an acquittal; (2) a second prosecution for the same

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offense after a conviction; and (3) multiple punishments for the same offense.

Jones v. Sec’y, Dep’t of Corr., 778 F. App’x 626, 634 (11th Cir. 2019) (citing

North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). None of the circumstances

establishing a double jeopardy violation are present here. The crime of

aggravated burglary with assault or battery contains different elements than

the crime of violating an injunction for protection against domestic violence,

and Petitioner was only convicted of the aggravated burglary charge.

Petitioner seems to believe that allowing evidence of the injunction to be

presented as Williams Rule evidence amounted to a double jeopardy violation,

but he is simply incorrect. Thus, the Court finds 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. This claim is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this case is DISMISSED

with prejudice.

2. The Clerk of Court shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

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3. If Petitioner appeals this dismissal, the Court denies a certificate

of appealability.2 Because this Court has determined that a certificate of

appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this Sa- day of

Z row A, , 2024.

oye STATES BISFRICT JUDGE

Jax-7

Todd Curtis West, #303861

Counsel of record

3 This Court should issue a certificate of appealability only if a petitioner

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§2253(c)(2). To make this substantial showing, Petitioner “must demonstrate that

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

claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting

Slack v. McDaniel, 529 U.S. 478, 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 (2008) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Upon due consideration, this Court will deny a certificate of appealability.

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