Opinion

Jackson v. Secretary Department of Corrections (St. Johns County)

Court: District Court, M.D. Florida
Filed: Mar 21, 2024
Cited by: 0 cases
Authority: More cited than 20.0%

“The choice not to call either of them as witnesses was not patently unreasonable that no competent lawyer would have chosen it, and was the epitome of a strategic decision.”

How later courts described this case

“The choice not to call either of them as witnesses was not patently unreasonable that no competent lawyer would have chosen it, and was the epitome of a strategic decision.”
stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
stating that counsel’s strategic decision “will be held to have been ineffective assistance only if it was ‘so patently unreasonable that no competent attorney would have chosen it.’” (quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)
rejecting ineffective assistance of appellate counsel claim regarding an erroneous forcible felony instruction in part because self-defense was not the only defense raised and the trial evidence contradicted the defendant’s trial testimony and his assertion of self-defense

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

O’SHEA TERRELL JACKSON,

Petitioner,

v. Case No. 3:21-cv-90-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner O’Shea Terrell Jackson, an inmate of the Florida penal

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

under 28 U.S.C. § 2254 (Petition; Doc. 1).1 Jackson also filed a Memorandum

of Law in Support of the Petition (Memorandum; Doc. 2). In the Petition,

Jackson challenges a 2014 state court (St. Johns County, Florida) judgment of

conviction for second-degree murder with a firearm. He raises four grounds for

relief. See Petition at 5-16. Respondents submitted a Response to the Petition

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

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

System.

(Response; Doc. 8) with exhibits (Doc. 9-1). Jackson filed a brief in reply (Reply;

Doc. 10). This action is ripe for review.

II. Relevant Procedural History

On July 14, 2011, a grand jury indicted Jackson on one count of first-

degree murder with a firearm. Doc. 9-1 at 7. Jackson proceeded to trial, and on

June 24, 2014, a jury found him guilty of the lesser included offense of second-

degree murder with a firearm. Id. at 751. On July 31, 2014, the trial court

sentenced Jackson to a term of imprisonment of forty years, with a minimum

mandatory term of twenty-five years. Id. at 1005-12.

Jackson appealed his conviction and sentence to the Fifth District Court

of Appeal (Fifth DCA). His appellate counsel filed an Anders2 brief, id. at 1794-

1814, and Jackson filed a pro se initial brief.3 The Fifth DCA ordered Jackson’s

appellate counsel to file a supplemental brief addressing Jackson’s pro se

argument that the jury instructions on self-defense and duty to retreat were

conflicting and constituted fundamental error. Id. at 1844, 1846-56. On

December 4, 2015, the Fifth DCA affirmed Jackson’s conviction and sentence

in a written opinion, id. at 1902-07, and on December 28, 2015, it issued the

mandate, id. at 1909.

2 Anders v. California, 386 U.S. 738 (1967).

3 See onlinedocketsdca.flcourts.org, O’Shea Terrell Jackson v. State of Florida,

5D14-2877 (Fla. 5th DCA).

On December 29, 2015, Jackson filed a notice seeking to invoke the

discretionary jurisdiction of the Florida Supreme Court. Id. at 1911-12. The

Florida Supreme Court denied his request on June 24, 2016. Id. at 1929. On

October 24, 2016, Jackson filed a pro se motion to amend in the Florida

Supreme Court. Id. at 1931-37. He argued that the trial court committed

reversible error by omitting the manslaughter instruction from the jury

instruction package that was sent to the deliberation room. Id. The Florida

Supreme Court treated the motion to amend as a petition for writ of habeas

corpus and transferred it to the postconviction court for consideration as a

motion for postconviction relief under Florida Rule of Criminal Procedure

3.850. Id. at 1947.

Upon transfer, the postconviction court determined the motion was

facially insufficient but granted Jackson leave to file a motion that complied

with the requirements of Rule 3.850. Id. at 1956-58. On January 4, 2017,

Jackson filed a Rule 3.850 Motion. Id. at 1960-81. Jackson subsequently

amended his Rule 3.850 Motion on October 20, 2017. Id. at 2002-30. In his

amended Rule 3.850 Motion, Jackson argued his trial counsel rendered

ineffective assistance when he: failed to file a pretrial motion for statutory

immunity under Florida Statutes section 776.032 (ground one); failed to call

Curtis Grant and Jarvis Baker as defense witnesses (ground two); failed to

request a Richardson4 hearing upon learning of a discovery violation (ground

three); requested a jury instruction on culpable negligence when the evidence

did not support such a theory (ground four); failed to object to the prosecutor’s

assertion, during closing argument, that Jackson had a duty to retreat (ground

five); failed to object to the trial court giving the jury an incomplete jury

instruction package (ground six); and failed to object to the jury instruction on

the forcible felony exception to self-defense (ground seven). Id. at 2002-27. In

addition, Jackson argued that the cumulative effect of his trial counsel’s errors

violated his Sixth Amendment rights (ground eight). Id. at 2028.

On November 13, 2018, the postconviction court ordered an evidentiary

hearing on grounds one and two of the amended Rule 3.850 Motion, deferred

ruling on ground eight until after the evidentiary hearing, and denied all

remaining grounds. Id. at 2092-2107. The postconviction court also appointed

counsel to represent Jackson during the evidentiary hearing. Id. at 2106-07.

After an evidentiary hearing, id. at 2291-2418, the postconviction court denied

grounds one and two of the amended Rule 3.850 Motion on April 4, 2019, id. at

2446-52. On February 11, 2020, the Fifth DCA per curiam affirmed the denial

of postconviction relief, id. at 2752, and issued the mandate on April 6, 2020,

id. at 2765.

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

While his amended Rule 3.850 Motion was pending, Jackson filed a pro

se petition for writ of habeas corpus in the Fifth DCA alleging ineffective

assistance of appellate counsel. Id. at 2767-83. On April 30, 2018, the Fifth

DCA denied the petition. Id. at 2804. Jackson filed a second petition for writ of

habeas corpus on July 2, 2018, in which he alleged manifest injustice. Id. at

2831-38. The Fifth DCA denied the petition on September 11, 2018. Id. at 2841.

Jackson filed the instant action on January 25, 2021. See Petition.

III. One-Year Limitations Period

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

forth in 28 U.S.C. § 2244.

IV. Evidentiary Hearing

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

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

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

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

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.

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

Court. Because the Court can “adequately assess [Jackson’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

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

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

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

2016), abrogation recognized on other grounds by Smith v. Comm’r, Ala. Dep’t

of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023). “‘The purpose of AEDPA is to

ensure that federal habeas relief functions as a guard against extreme

malfunctions in the state criminal justice systems, and not as a means of error

correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)). As such,

federal habeas review of final state court decisions is “‘greatly circumscribed’

and ‘highly deferential.’” Id. (internal quotation marks omitted) (quoting Hill

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

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

decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

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

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

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

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

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

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

relitigation of the claim unless the state court’s decision (1) “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States;” or (2) “was based on

an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

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

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id.

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

claims of state courts’ erroneous factual

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

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

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The Supreme Court has not yet defined §

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

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

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

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

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

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

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

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’” Titlow, 571 U.S. at --

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

301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

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

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

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

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

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

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

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

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

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

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

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

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

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

adjudicated on the merits in the state courts, they must be evaluated under 28

U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a §

2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

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

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

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

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

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

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

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

“‘“opportunity to pass upon and correct” alleged

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

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

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

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

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

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

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

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[5] supra, at 747-

748, 111 S. Ct. 2546; Sykes,[6] supra, at 84-85, 97 S.

Ct. 2497. A state court’s invocation of a procedural rule

to deny a prisoner’s claims precludes federal review of

the claims if, among other requisites, the state

procedural rule is a nonfederal ground adequate to

support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127-

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

U.S. --, --, 130 S. Ct. 612, 617-18, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally defaulted

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 111 S. Ct. 2546.

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

be excused under certain circumstances. Notwithstanding that a claim has

been procedurally defaulted, a federal court may still consider the claim if a

state habeas petitioner can show either (1) cause for and actual prejudice from

the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

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

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

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[7]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

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

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

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

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

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

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

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

(11th Cir. 2001).

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

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

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

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

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

curiam) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then

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

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

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

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

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

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

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

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

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

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

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

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

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

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

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

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

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

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

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

deference.

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

a most deferential one.” Richter, 562 U.S. at ---, 131 S.

Ct. at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question is not whether a federal court

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable — a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, 562 U.S. at ---, 131 S. Ct. at 788.

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

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

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

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

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

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

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

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

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, Jackson argues his trial counsel was ineffective when

he failed to object to the trial court instructing the jury on the forcible felony

exception to the justifiable use of deadly force. See Petition at 5-7. Jackson

asserts he was prejudiced by his counsel’s failure to object because the

erroneous instruction negated his sole defense. See Memorandum at 7-10.

Jackson raised a substantially similar claim as ground seven of his

amended Rule 3.850 Motion. See Doc. 9-1 at 2026-27. The postconviction court

denied the claim, stating in relevant part:

In his seventh ground for post-conviction relief,

the Defendant alleges his attorney was ineffective for

failing to object to the trial court instructing the jury

on the forcible felony exception to the justifiable use of

deadly force (self-defense). The forcible felony

exception to the justifiable use of deadly force

instruction was given by the trial court. The

Defendant is correct that Florida courts have held the

forcible felony instruction at issue should only be given

when a defendant is alleged to have been committing

or attempting to commit a separate, independent

forcible felony at the time he or she allegedly acted in

self-defense. See e.g. Martinez v. State, 981 So.2d 449,

452 (Fla. 2008); Morgan v. State, 127 So.3d 708, 714

(Fla. 5th DCA 2013); Crimins v. State, 113 So.3d 945,

948 (Fla. 5th DCA 2013); Sloss v. State, 45 So. 3d 66,

68 (Fla. 5th DCA 2010); Barnes v. State, 12 So.3d 797,

798 (Fla. 5th DCA 2009); Cancel v. State, 985 So.2d

1127 (Fla. 5th DCA 2008); Sipple v. State, 972 So.2d

912, 914 (Fla. 5th DCA 2008); Hawk v. State, 902

So.2d 331, 333 (Fla. 5th DCA 2005); Cleveland v.

State, 887 So.2d 362, 363 (Fla. 5th DCA 2004).

The Indictment filed in this case only charged

the Defendant with First Degree Murder. Similarly,

the evidence offered at trial did not appear to indicate

an uncharged independent forcible felony that the

Defendant committed at the time he shot and killed

the victim. It appears, therefore, that it was error to

instruct the jury on the forcible felony exception. While

the State concedes it was error for the Court to have

given this instruction, it responds by asserting the

Defendant was not substantially prejudiced by this

error.

In a number of cases addressing the forcible

felony instruction, Florida courts have found that

while the instruction should not have been given, the

error in doing so was not fundamental error. See

Martinez, supra.; Barnes, supra.; Cancel, supra. Other

cases have held that where no fundamental error is

found, a defendant is likewise unable to demonstrate

that his counsel’s failure to post an objection resulted

in prejudice sufficient to undermine the outcome of a

trial under Strickland. Lowe v. State, 2 So.3d 21, 38

(Fla. 2009); Chandler v. State, 848 So.2d 1031, 1046

(Fla. 2003); Davis v. State, 12 So.3d 918 (Fla. 5th DCA

2009).

The courts that have found that no fundamental

error occurred in instructing the jury on the forcible

felony exception to self-defense have based their

conclusions on one or more of the following factors: (1)

whether a defendant argued other defenses at trial, (2)

whether his or her self-defense claim was weak, and

(3) whether the State argued the forcible felony

instruction to the jury in countering the defendant’s

self-defense claim. See Martinez, 981 So.2d at 456;

Barnes, 12 So.3d at 798; Cancel, 985 So.2d at 1130.

Each of these considerations are present in the instant

case and weigh against a finding of prejudice.

At trial, the Defendant testified on his own

behalf. During his trial testimony, the Defendant

claimed that on June 23, 2011, he drove to the victim,

Eric Felder’s, house to talk to him about an incident

earlier that day in which he had heard Mr. Felder had

assaulted his mother. The Defendant admitted to

taking a loaded handgun with him due to the victim’s

alleged reputation for violence and, upon arriving at

Mr. Felder’s residence, placing the gun in his

waistband as he exited his vehicle. The Defendant said

he walked about halfway toward the victim before he

stopped and asked the victim, who was sitting at a

picnic table some distance away, about the incident.

The Defendant then claimed that, following an

exchange of words, Mr. Felder ran, grabbed a metal

folding chair, and then struck him in the head with the

chair. The Defendant then testified that after being

struck the first time, he pulled the gun from his

waistband for the sole purpose of warning Mr. Felder

that he “didn't come ‘round here for this.[’]” He stated

that the victim then swung the chair at him a second

time, at which point the Defendant raised his hand,

which was still holding the gun, in order to fend off the

blow. The chair then struck the Defendant’s hand with

enough force to cause the gun to accidentally

discharge. The discharged bullet then struck the

victim, resulting in his death.

While self-defense appears to have been the

default argument at trial, the Defendant’s own

testimony and motion clearly shows that the actual

nature of his defense was either that the shooting was

accidental or self-inflicted by the victim as a result of

the victim’s alleged assault on the Defendant. The only

defensive force the Defendant claimed he used against

the victim was his act of arming himself with the

firearm when he arrived at the victim’s residence and

then pulling it out of his waistband after he was struck

in the head with the metal chair by the victim. The

Defendant essentially denied that he intentionally

pulled the trigger after deciding that he had no choice

but to use deadly force to defend himself.

In Martinez, supra., the defendant was charged

with attempted first degree premeditated murder and

aggravated battery for the single act of stabbing his

girlfriend. The defendant raised a claim of self-

defense, along with other defenses. At the conclusion

of the trial, the jury was improperly charged on the

forcible felony instruction without objection by defense

counsel. Upon reviewing the complete record in the

case, the Florida Supreme Court held that the

erroneous instruction did not deprive the defendant of

a fair trial and, therefore, fundamental error did not

occur. 981 So.2d at 454. The Court explained it

reached that conclusion for two reasons. First, self-

defense was not the only strategy pursued by

Martinez. The Court observed the defendant also

argued the defenses of accident, intoxication, lack of

premeditation, and that the victim’s wounds were self-

inflicted. Therefore, the Court held that, although the

forcible felony instruction was erroneous, it did not

deprive the defendant of his sole, or even his primary,

defense strategy. Id. at 456. Second, the Court

concluded the defendant’s claim of self-defense was

extremely weak. It noted that his description of the

incident did not match the physical evidence and that

his own testimony was inconsistent and contradictory.

Given these circumstances, the Court held even if the

forcible felony instruction had not been read to the

jury, the possibility that the jury would have found

Martinez not guilty by reason of self-defense minimal

at best. Id.

In Barnes, supra., the defendant was charged

with attempted first degree murder. The victim in the

case was shot eight times, including once in the back

as he was fleeing the shooting. At trial, the defendant

claimed self-defense. The trial court charged the jury

accordingly, including the instruction on the forcible

felony exception. Defense counsel did not object to the

forcible felony instruction, and the jury subsequently

convicted the defendant of attempted second degree

murder. On appeal, the Court observed that the

physical evidence was inconsistent with self-defense

and that the State never argued to the jury that

Barnes’ commission of a forcible felony negated his

claim of self-defense. Because of this, it held that

improperly giving the forcible felony instruction was

not fundamental error and, thus, did not require

reversal. 12 So.3d at 798.

Lastly, in Cancel, supra., the defendant was

charged with a single count of second degree murder

with a weapon after he struck the victim in the head

with a bat or stick. Unlike in Martinez, the only

defense raised at trial was self-defense. The trial

court, at the urging of the prosecutor, instructed the

jury on the forcible felony exception to self-defense.

Unlike in Barnes, the prosecutor proceeded to argue

the forcible felony instruction to the jury during his

closing argument. 985 So.2d at 1130. Nevertheless,

the Fifth District Court of Appeal concluded the

defendant’s claim of self-defense was extremely weak.

It observed that his own testimony was inconsistent

with self-defense and with a video recording of the

incident. For these reasons, it held that the trial court

did not commit fundamental error by instructing the

jury on the forcible felony exception. Id. at 1130-31.

As in Martinez, the defense in this case was not

wholly rooted in a claim of self-defense. The

Defendant’s testimony here relied more on a claim

that the shooting of the victim was the result of an

accident or his own actions. Because the erroneous

forcible felony instruction did not negate the primary

defense that the victim’s death was the result of an

accident or by his own actions, it cannot be said that it

undermined the outcome of the trial.

Additionally, the Defendant’s claim of self-

defense, like those asserted in Martinez, Barnes, and

Cancel was weak. First, the Defendant told several

different stories concerning how the victim was shot.

At trial, as stated before, he testified that he

approached the victim while armed with a firearm in

his waistband to get the victim’s side of the story

concerning an alleged assault of the Defendant’s

mother earlier in the day. The Defendant said that he

stopped about halfway between his vehicle and a

picnic table where the victim was sitting and,

following an exchange of words, the victim ran back to

a tree, picked up a metal folding chair, and then

attacked the Defendant by striking him in the head

with the chair. The Defendant testified that he then

pulled the gun from his waistband simply to warn the

victim not to hit him again. However, the victim swung

the chair at his head again. The Defendant then

claimed that he put up right hand in which he was still

holding the gun in order to shield himself from the

blow. The chair then struck him in the hand and, as a

result, the gun accidentally discharged and struck the

victim in the head. The Defendant stated upon being

shot, the victim immediately fell back on the ground

and didn’t move again.

The Defendant’s trial testimony, however, was

vastly different than two statements he made to law

enforcement in the days immediately following the

shooting. In those statements, he denied going to the

victim’s residence with a firearm or even having a

firearm. He claimed that upon confronting the victim,

the victim pulled a firearm and struck him on the

head. A scuffle then ensued, which eventually led to

the two of them rolling around on the ground,

wrestling over the gun. It was during that struggle

that the gun unintentionally went off, striking the

victim in the head. Testimony concerning these

contradictory statements was given by the police

investigator who had interviewed the Defendant, and

the Defendant admitted to making the statements on

cross-examination.

In addition to the Defendant’s trial testimony

being inconsistent with his police interviews, it was

also inconsistent with the physical evidence. The

Defendant testified that the blow with the chair

opened a deep gash on the left side of his head that

was still bleeding when he turned himself in to law

enforcement. However, the police officer who took the

Defendant into custody later that night, testified that

he examined the Defendant and did not observe any

injuries whatsoever. Lastly, the Defendant’s previous

attorney testified at trial that during a meeting with

the Defendant the morning after the shooting he saw

only a bump on the Defendant’s head and saw no

evidence of any bleeding.

The third factor courts have considered in

determining whether improperly instructing a jury on

the forcible felony exception was fundamental error is

whether the State actually argued the instruction at

trial. Barnes, supra. In this case, as in Barnes, the

State never addressed the forcible felony instruction

at any point during its closing argument.

Finally, it should be noted the Fifth District

Court of Appeal addressed the issue of the self-defense

jury instructions given in this case. Jackson, supra.

Although it did not address specifically the forcible

felony jury instruction, it found no error on the self-

defense instructions given. Id. at 1106.

Accordingly, the record conclusively

demonstrates that the Defendant did not suffer any

prejudice as the result of any error in instructing the

jury on the forcible felony exception to self-defense.

Therefore, his claim in ground seven should be denied.

Doc. 9-1 at 2098-2106 (record citations omitted). The Fifth DCA affirmed the

denial of relief without a written opinion. Id. at 2752.

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

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

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

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

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

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

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

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

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

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, Jackson is not entitled to relief

on the basis of this claim.

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

is not entitled to deference, the claim is without merit. Assuming arguendo

that Jackson’s trial counsel erred in failing to object to the erroneous forcible

felony instruction, the record fully supports the postconviction court’s

conclusion that Jackson failed to demonstrate prejudice. Contrary to Jackson’s

assertion in his Petition and Memorandum, self-defense was not the sole, or

even primary, defense strategy pursued by Jackson at trial. Rather, as the

postconviction court noted, Jackson testified at trial that the shooting was the

result of an accidental discharge or self-inflicted by the victim as a result of the

victim’s alleged assault on Jackson. See Doc. 9-1 at 320-21 (testifying that the

victim “attempt[ed] a second time to swing [the folding chair at Jackson], and

that’s when [Jackson] put [his] hand up to . . . block the hit. And the chair hit

[Jackson’s] arm, and that’s when the accidental discharge went off”). Not only

that, Jackson’s defense theories, including his self-defense claim, were

weakened by his admission that his trial testimony was inconsistent with, and

largely contradictory to his prior statements to law enforcement personnel. Id.

at 323-25, 342-43 (admitting that he lied to detectives during interviews that

took place shortly after the shooting).

In addition, multiple eyewitnesses’ trial testimony failed to support

Jackson’s account of the shooting or his defense theories. See, e.g., Doc. 9-1 at

192-93, 195 (Raymond Evans’ testimony that Jackson said “I’m going to kill a

lot of you motherfuckers around here” immediately before the shooting, and

further, that the victim was never able to raise a chair up to strike Jackson);

id. at 219, 223 (Daryll Varnes’ testimony that the victim was bending down to

pick up a chair when he was shot); id. at 127 (Kenneth Hardy’s testimony that

the victim did not have a chance to swing the chair at Jackson before being

shot).

Moreover, the jury instructions on Jackson’s defenses were not limited

to Jackson’s claim of self-defense; the trial court also instructed the jury on

Jackson’s accidental shooting theory. See Doc. 9-1 at 958 (instructing jury that,

in certain circumstances, the “killing of a human being is excusable, and

therefore lawful” if it is “committed by accident”). Finally, there is no indication

that the State ever argued to the jury that Jackson’s commission of a forcible

felony negated his claim of self-defense.

On this record, Jackson has not demonstrated that he was prejudiced by

his trial counsel’s failure to object to the trial court instructing the jury on the

forcible felony exception to self-defense. See, e.g., Pinkney v. Sec’y, Dep’t of

Corr., 876 F.3d 1290, 1295 (11th Cir. 2017) (rejecting ineffective assistance of

appellate counsel claim regarding an erroneous forcible felony instruction in

part because self-defense was not the only defense raised and the trial evidence

contradicted the defendant’s trial testimony and his assertion of self-defense);

Santiago v. Sec’y, Dep’t of Corr., 723 F. App’x 896, 903-04 (11th Cir. 2018) (trial

counsel’s failure to object to forcible felony exception to self-defense jury

instruction did not prejudice defendant, and, thus, did not amount to

ineffective assistance of counsel, where the trial evidence contradicted

defendant’s trial testimony and “no one ever mentioned, let alone argued, the

forcible felony exception to the jury”).9 Accordingly, relief on the claim in

Ground One is due to be denied.

B. Ground Two

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

he failed to file a pretrial motion to dismiss based on statutory immunity under

Florida’s “Stand Your Ground” law. See Petition at 7-11; Memorandum at 11-

15. Jackson raised a substantially similar claim as ground one of his amended

Rule 3.850 Motion. See Doc. 9-1 at 2005-08. After holding an evidentiary

hearing on the claim, the postconviction court denied relief, stating in relevant

part:

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

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

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

In ground one of the Defendant’s motion he

asserts his counsel was ineffective for failing to file a

pretrial motion for dismissal based on immunity under

Florida’s Stand Your Ground Law, pursuant to Fla.

Stat. § 776.032. At the evidentiary hearing, the State

called the Defendant’s trial counsel James Hernandez,

Esq. as a witness. Mr. Hernandez is an experienced

criminal defense attorney with over 30 years

experience. Mr. Hernandez testified he made a

strategic decision to not file a stand your ground

motion to dismiss. Mr. Hernandez testified that in

order to have pursued such a motion he would had to

have called the Defendant to testify.[10] Mr.

Hernandez testified that he did not want to call the

Defendant to testify at such a hearing because the case

was being prosecuted by very experienced prosecutors

and he did not want to give them a shot at cross-

examining the Defendant, particularly considering the

fact that the Defendant had given two inconsistent

statements regarding the incident prior to trial. The

Defendant even acknowledged in his motion that his

attorney didn’t file the stand your ground motion

because he thought doing so would disadvantage them

by revealing their theory of defense.

Based on the testimony presented to the Court

at the evidentiary hearing, this Court concludes that

Mr. Hernandez exercised sound defense strategy by

not filing a stand your ground motion. Considering the

nature of the case, and the fact the Defendant had

already made two prior statements that were

inconsistent, it was very reasonable to not file a stand

your ground motion, in which the Defendant would be

forced to testify and be subject to cross-examination by

experienced prosecutors. Mr. Hernandez clearly acted

10 The postconviction court noted: “At the time this case was pending, Fla. Stat.

§776.032 provided that it was the Defendant’s burden to establish entitlement to

immunity; therefore, the Court concurs with Mr. Hernandez’s assessment that he

would have had to call the Defendant to testify at such a hearing. Fla. Stat. §776.032

has since been amended shifting the burden to the prosecution to establish the

Defendant is not entitled to immunity. Ch. 2017-72, Laws of Fla.” See Doc. 9-1 at

2448.

within the wide range of reasonably competent

performance under prevailing professional standards.

Additionally, the Defendant failed to establish the

prejudice prong in Strickland. Defendant failed to

establish that even had his trial counsel filed a stand

your ground motion that there was a reasonable

probability that it would have been granted. This is

particularly the case considering the differing version

of events Defendant had given. Defendant initially

claimed the victim had pulled a gun during the

altercation. The Defendant initially reported that

during the struggle the gun fell, he and the victim

fought for control over it, and then the gun discharged

striking the victim. The Defendant later changed his

story, indicating he brought the gun and pulled it on

the victim during the altercation and the gun went off

striking the victim. In light of the Defendant’s

multiple version of events, there is not a reasonable

probability that had defense counsel filed a stand your

ground motion, it would have been granted.

Therefore, the Defendant has failed to establish

his claim in ground one and it will be denied.

Id. at 2448-50. The Fifth DCA affirmed the denial of relief without a written

opinion. Id. at 2752.

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

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

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

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

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

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

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, Jackson is not entitled to relief

on the basis of this claim.

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

is not entitled to deference, the claim is without merit. Jackson’s trial counsel

testified at the evidentiary hearing that he made the decision not to file a

pretrial stand your ground motion to dismiss because Jackson would have had

to testify at a hearing on the motion. Because Jackson had given differing

accounts to law enforcement personnel regarding the shooting, counsel

indicated that he did not want Jackson to be subject to cross-examination by

experienced prosecutors. See Doc. 9-1 at 2390-93. Further, the Court notes that

if the motion to dismiss failed, Jackson’s hearing testimony could have been

used against him at trial. See Cruz v. State, 189 So. 3d 822, 827-29 (Fla. 4th

DCA 2015) (holding that the trial court did not err in allowing admission of a

defendant’s statements at a Stand Your Ground hearing as substantive

evidence at trial because the defendant “was not required to surrender any

constitutional right by voluntarily testifying in the pre-trial Stand Your

Ground immunity hearing.”). Under these circumstances, Jackson has not

shown that his counsel’s strategic decision not to file a stand your ground

motion was so “patently unreasonable” as to amount to ineffective assistance.

See Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (stating

that counsel’s strategic decision “will be held to have been ineffective

assistance only if it was ‘so patently unreasonable that no competent attorney

would have chosen it.’” (quoting Adams v. Wainwright, 709 F.2d 1443, 1445

(11th Cir. 1983)).

Insofar as Jackson argues that a pretrial stand your ground motion to

dismiss “would have been successful,” see Memorandum at 15, the Court is not

persuaded. The statute Jackson relies on in support of this claim, Florida

Statutes section 776.012(2), states in pertinent part that “[a] person is justified

in using or threatening to use deadly force if he or she reasonably believes that

using or threatening to use such force is necessary to prevent imminent death

or great bodily harm to himself or herself.” (emphasis added). Although

Jackson gave several differing accounts regarding how the shooting occurred,

his primary defense theory was that the gun accidentally discharged and

struck the victim. Assuming Jackson’s testimony at a hearing on a pretrial

stand your ground motion to dismiss would be consistent with this theory,

Jackson could not have established that he discharged the weapon because he

“reasonably believed” that using deadly force was necessary to prevent

imminent death or great bodily harm to himself. Discharging a firearm

accidently does not entail formulating a belief, reasonable or otherwise, that

deadly force is necessary. Accordingly, Jackson fails to establish that his

counsel was ineffective for failing to file a pretrial stand your ground motion to

dismiss. See Pinkney, 876 F.3d at 1297 (“[A]n attorney will not be held to have

performed deficiently for failing to perform a futile act, one that would not have

gotten his client any relief.”). Thus, relief on the claim in Ground Two is due to

be denied.

C. Ground Three

As Ground Three, Jackson argues his trial counsel was ineffective for

failing to call Curtis Grant and Jarvis Baker as defense witnesses during trial.

See Petition at 11-14. Jackson raised a substantially similar claim as ground

two of his amended Rule 3.850 Motion. See Doc. 9-1 at 2009-12. After an

evidentiary hearing on this claim, the postconviction court denied relief,

stating in pertinent part:

In ground two, Defendant asserts his counsel

was ineffective for failing to call Curtis Grant and

Jarvis Baker as witnesses at trial to support his claim

of self-defense and his claim that his gun accidentally

discharged during the altercation. At the evidentiary

hearing, Defendant called Curtis Grant as a witness.

Mr. Grant is the Defendant’s cousin and testified he

was in the car with Defendant when he drove to the

scene of the murder to confront the victim regarding

an altercation the victim had earlier with the

Defendant’s mother. Mr. Grant testified that the

victim swung a chair at the Defendant and shortly

thereafter he heard a gunshot. Mr. Grant testified at

the evidentiary hearing that he didn’t know if the

Defendant had a gun but guessed he had one; however,

Mr. Grant acknowledged that he gave deposition

testimony before trial wherein he conclusively

testified that the Defendant did not have a gun. Mr.

Hernandez testified that the problem with calling Mr.

Grant to testify as a defense witness at trial was that

Mr. Grant’s deposition testimony—that the Defendant

never had a gun—was inconsistent with the

Defendant’s version of events at trial that he had a gun

and was defending himself with the gun when it went

off by accident during a scuffle. Mr. Hernandez

testified he spoke with Mr. Grant prior to trial and the

testimony he would have given was inconsistent with

the Defendant’s version of events and theory of

defense. Therefore, Mr. Hernandez made the

reasonable strategic decision to not call a witness to

testify that would provide evidence contrary to the

defense theory.

The defense also called Jarvis Baker to testify at

the evidentiary hearing. Mr. Baker is also the

Defendant’s cousin. Mr. Baker testified he was present

during the murder. He testified that he observed the

Defendant go up to the victim, the victim hit the

Defendant with a chair, the Defendant was falling

back and the gun he had in his hand discharged by

accident. Mr. Baker testified that he never told the

police what he observed because he had a warrant

outstanding for his arrest at the time. Mr. Hernandez

testified that he spoke with Mr. Baker on the phone

prior to trial, and during that phone conversation Mr.

Baker told him that immediately after the victim hit

the Defendant with the chair and before the Defendant

shot the victim, the Defendant said “I’ll kill all of you.”

Mr. Baker confirmed on cross-examination at the

evidentiary hearing, that he heard the Defendant

make that statement.

Mr. Hernandez testified that he felt he could not

call Mr. Baker to testify because of that statement,

which would have defeated the self-defense and

accidental discharge theory of defense, and would have

played into the State’s theory that the murder was

premeditated and led to a First Degree Murder

conviction. Therefore, Mr. Hernandez made the very

reasonable strategic decision to not call Mr. Baker as

a witness at trial. Thus, the Court concludes that Mr.

Hernandez was not ineffective in that he acted within

the wide range of reasonably competent performance

under prevailing professional standards.

See Doc. 9-1 at 2450-52. The Fifth DCA affirmed the denial of relief without a

written opinion. Id. at 2752.