# West v. Secretary Department of Corrections (Duval County)

> District Court, M.D. Florida · March 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10115453

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10115453

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

39

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

40

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
Al

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.

42

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10115453. Public record. Not legal advice.