McChriston v. Secretary Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MILES TIMOTHY MCCHRISTON,

Petitioner,

v. Case No. 3:21-ev-67-HES-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

ORDER

I. Status

Petitioner Miles Timothy McChriston, an inmate of the Florida penal

system, initiated this action on January 15, 2021,! by filing a Petition for

Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doce. 1).2 In the

Petition, McChriston challenges a 2014 state court (Duval County, Florida)

judgment of conviction for first-degree murder. He raises twelve grounds for

relief. See Petition at 5-41. Respondents submitted a memorandum in

opposition to the Petition. See Response (Doc. 5). They also submitted

exhibits. See Docs. 5-2 through 5-9; 10-1 through 10-4. McChriston filed a

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

brief in reply (Reply; Doc. 8) with exhibits (Docs. 8-2 through 8-8). This action

is ripe for review.

II. Relevant Procedural History

On April 4, 2013, the State of Florida charged McChriston by

indictment with first-degree murder. Doc. 5-2 at 59-61. On October 22, 2014,

a jury found McChriston guilty as charged in the indictment. Doc. 5-5 at

95-96. The trial court sentenced McChriston to a term of life imprisonment.

Id. at 100-06. On direct appeal, with the benefit of counsel, McChriston filed

an initial brief, arguing the trial court erred when it: (1) denied the defense’s

motion for judgment of acquittal and (2) failed to reweigh the evidence before

denying the defense’s motion for new trial. Doc. 10-1. The State filed an

answer brief. Doc. 10-2. The First DCA per curiam affirmed McChriston’s

conviction and sentence on December 1, 2015, Doc. 10-8, and issued the

mandate on December 29, 2015, Doc. 10-4.

Beginning on August 1, 2016, McChriston filed multiple motions for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850,

culminating with a motion (Rule 3.850 motion) that raised ten grounds for

relief. Doc. 5-9 at 6-17, 20-32, 37~49, 57-78. In his Rule 3.850 motion,

McChriston alleged counsel was ineffective when she failed to: (1) file a

motion to dismiss the indictment; (2) object to photographs of the victim’s

shirt; (3) properly cross-examine Detective Anthony Dziergowski; (4) present

a defense at trial; (5) object to the prosecutor's closing argument that

misrepresented McChriston’s statements to law enforcement; (6) object to the

prosecutor's closing argument about McChriston’s state of mind at the time of

the murder; (7) object to the prosecutor’s explanation of justifiable and

excusable homicide; (8) object to the prosecutor instructing the jury to show

prejudice; (9) object to the prosecutor’s argument about facts not in evidence;

and (10) object to and move for a mistrial based on a sleeping juror. Id. at

57-78. The postconviction court held an evidentiary hearing on ground ten.

See id. at 86-87. On November 13, 2018, the postconviction denied relief on

all grounds. Id. at 156-66. McChriston pursued an appeal. The First DCA per

curiam affirmed the denial of relief without a written opinion on March 24,

2020, id. at 902, and issued the mandate on June 30, 2020, id. at 920.

III. One-Year Limitations Period

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

28 U.S.C. § 2244(d).

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 (llth 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 [McChriston’s] claim[s]

without further factual development,” Turner v. Crosby, 339 F.8d 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, 1848 (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 “sreatly

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, 188 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. ---, ---, 1384S.

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

v. Cain, 576 USS. ---, ---, 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

USS. at ---, 184 8. 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 8. 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 Gncluding a

state supreme court with powers of discretionary

review), thereby alerting that court to the federal

nature of the claim. Duncan, supra, at 865-366, 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,[?] supra, at 747-748, 111 S. Ct. 2546:

Sykes,[4] 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 USS. -., --, 181 S. Ct. 1120,

1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,

558 U.S. --, --, 180 S. Ct. 612, 617-618, 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.

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

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

10

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

may be excused under certain circumstances. Notwithstanding that a claim

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

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

from the default; or (2) a fundamental miscarriage of justice. Ward v. Hall,

592 F.3d 1144, 1157 (11th Cir. 2010). In order for a petitioner to establish

cause,

the procedural default “must result from some

objective factor external to the defense that

prevented [him] from raising the claim and which

cannot be fairly attributable to his own conduct.”

McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.

1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct.

2639).[°] 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

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

11

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).

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.

12

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 vy. 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 698, 104 S. Ct. 2052. Counsel’s

errors must be “so serious as to deprive the defendant

13

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

687, 1048. 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

USS. 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

14

incorrect but whether that determination was

unreasonable — a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 128, 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 ---,

13158. 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, “fiJn 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, 1809 (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, McChriston argues that the trial court violated his

right to due process when it denied his motion for judgment of acquittal. See

Petition at 5-12. He contends that the evidence at trial did not suggest “any

kind of plan or scheme or reflection or premeditation,” and, as such, the State

15

failed to present sufficient evidence of the premeditation element of first-

degree murder. Id. at 6. McChriston raised this issue on direct appeal, Doc.

10-1 at 18-20, and the State filed an answer brief, Doc. 10-2 at 20-28. The

First DCA per curiam affirmed McChriston’s conviction and sentence without

a written opinion. Doc. 10-3.

The Court determines that McChriston did not fairly present the

federal nature of his claim to the state court. On direct appeal, McChriston

relied exclusively on Florida law to argue that the trial court erred when it

denied his motion for judgment of acquittal. Doc. 10-1 at 18-20. Nevertheless,

McChriston contends in his Reply that he alerted the state court to the

federal nature of his claim by citing to Tibbs v. State, 397 So. 2d 1120 (Fla.

1981), which sets forth the federal standard for “deciding whether evidence is

sufficient to sustain a jury guilty verdict.” Reply at 8. The Court is not

persuaded. Tibbs concerns the distinction between an appellate court’s

reversal of a conviction based on the weight of the evidence and one based on

the sufficiency of the evidence. 397 So. 2d at 1121. It does not cite to or

discuss the leading federal case on due process, Jackson v. Virginia, 443 U.S.

307 (1979). As such, McChriston did not alert the state court to the federal

nature of his claim, and in failing to do so, deprived the state court of a

16

meaningful opportunity to review the claim. See Baldwin v. Reese, 541 U.S.

27, 29 (2004). Since future attempts to exhaust the claim would be futile, it is

procedurally defaulted. McChriston has alleged neither cause and prejudice

nor a miscarriage of justice to overcome his failure to exhaust. As such,

Ground One is due to be denied as procedurally barred.

Nevertheless, even if McChriston properly exhausted the claim in

Ground One, he is still not entitled to relief. In its appellate brief, the State

addressed this claim on the merits, Doc. 10-2 at 20-28; therefore, the

appellate court may have affirmed McChriston’s conviction based on the

State’s argument. If the appellate court addressed the merits of this claim,

the state court’s adjudication is entitled to deference under AEDPA. 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. Therefore,

McChriston is not entitled to relief on the basis of this claim.

Even assuming that the state court’s adjudication of this claim is not

entitled to deference, McChriston’s claim is without merit because the State

17

presented sufficient evidence to support his conviction for first-degree

murder. The Due Process Clause of the Fourteenth Amendment requires the

State to prove each element of the offense charged beyond a reasonable

doubt. Thompson v. Nagle, 118 F.3d 1442, 1448 (11th Cir. 1997). In reviewing

the sufficiency of evidence, “this court must presume that conflicting

inferences to be drawn from the evidence were resolved by the jury in favor of

the State.” Id. Jackson vy. Virginia “provides the federal due process

benchmark for evidentiary sufficiency in criminal cases.” Williams v. Sec’y for

Dep’t of Corr., 395 F. App’x 524, 525 (11th Cir. 2010)® (per curiam). In

accordance with this authority, the relevant question is whether any rational

jury, after viewing the evidence in the light most favorable to the prosecution,

could have found the essential elements of the charged offense beyond a

reasonable doubt. Jackson, 443 U.S. at 319.

After viewing the evidence in the light most favorable to the

prosecution, a rational trier of fact could have found McChriston committed

the offense of first-degree murder. The State presented evidence that, on the

® 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.”).

18

evening of July 24, 2012, McChriston, Richard Persons, James “Bossman”

Williams, and Corey Bright went to the victim’s house to confront him about

assaulting his girlfriend, Persons’ cousin. Docs. 5-7 at 217-19, 223-26,

274-78; 5-8 at 141-46. After the confrontation escalated, the four men shot

the victim. Id. McChriston admitted to law enforcement that he shot the

victim twice. Doc. 5-8 at 153. Forensic evidence connected the gun and bullets

that McChriston used during the incident to those that fatally wounded the

victim. Does. 5-7 at 312-13, 321; 5-8 at 47-49, 147-48, 153.

As to premeditation, the evidence established that McChriston shot the

victim twice in the back with a .45 caliber gun. Doc. 5-8 at 147-48, 153. He

stated that he had experience with guns and aimed “center mass.” Id. at 156.

Moreover, McChriston and Persons had visited the victim’s house to confront

him on the afternoon of July 24, 2012; however, he was not at the house.

Does. 5-7 at 214-17; 5-8 at 140. The shooting occurred when they returned for

the victim later that day. Thus, viewing the evidence in the hight most

favorable to the prosecution, there was sufficient evidence to support the

conviction for first-degree murder. Competent evidence of the elements of the

offense was introduced at trial, and no due process violation occurred. Given

the record, the trial court did not err in denying McChriston’s motion for

19

judgment of acquittal. Therefore, McChriston is not entitled to habeas relief

as to Ground One.

B. Ground Two

Next, McChriston alleges that the trial court violated his right to due

process when it failed to reweigh the evidence before denying his motion for

new trial. See Petition at 13-14. According to McChriston, “the trial court

judge stated simply, ‘Okay. The motion for new trial is denied... . [and the

trial judge] failed to say or do anything indicating he had ‘reweighed’ the

evidence as required.” Id. at 14. McChriston raised this issue on direct

appeal, Doc. 10-1 at 21-22, and the State filed an answer brief, Doc. 10-2 at

29-34. The First DCA per curiam affirmed McChriston’s conviction and

sentence without a written opinion. Doc. 10-3.

The Court determines that McChriston did not fairly present the

federal nature of his claim to the state court. In his initial brief on appeal,

McChriston presented his claim only in the context of state law. Doc. 10-1 at

21-22. He neither cited to a federal statute, nor federal case law. Therefore,

he did not alert the state court to the federal nature of his claim, and in

failing to do so, deprived the state court of a meaningful opportunity to

review the claim. See Baldwin, 541 U.S. at 29. Since future attempts to

20

exhaust the claim would be futile, it is procedurally defaulted. McChriston

has alleged neither cause and prejudice nor a miscarriage of justice to

overcome his failure to exhaust. Accordingly, Ground Two is due to be denied

as procedurally barred.

Nevertheless, to the extent McChriston asserts that the trial court

applied the wrong standard under Florida law when it denied his motion for

new trial, the claim presents an issue purely of state law not cognizable on

federal habeas review. The purpose of a federal habeas proceeding is to

review the lawfulness of McChriston’s custody to determine whether that

custody is in violation of the Constitution or laws or treaties of the United

States. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (holding errors of

state law are not cognizable in federal habeas review); Estelle v. McGuire,

502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.”). Thus, insofar

as McChriston alleges that the trial court’s ruling failed to comply with

Florida law, this claim provides no basis for federal habeas relief. As such,

McChriston is not entitled to federal habeas relief on the claim in Ground

Two.

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C. Grounds Three through Five

In his Reply, McChriston concedes Grounds Three through Five. See

Reply at 11 (‘These three claims are waived in this pleading, as they cannot

prevail.”). As such, Grounds Three through Five are due to be denied.

D. Ground Six

In Ground Six, McChriston alleges that counsel was ineffective when

she failed to present a defense at trial. Petition at 24. He contends that

although he “made statements to the law enforcement officers that would

support a Jury instruction on self-defense or excusable homicide,” counsel

failed to request such an instruction. Id.

McChriston raised a substantially similar claim in his Rule 3.850

motion. Doc. 5-9 at 67-68. The postconviction court denied relief, stating in

pertinent part:

Defendant alleges counsel was ineffective for not

raising a defense on his behalf. Specifically,

Defendant complains counsel was deficient for failing

to request an instruction on self-defense based upon

Defendant's statement to police. Defendant claims

prejudice, alleging that the jury would have rendered

a different verdict had the trial court instructed them

on self-defense.

However, Defendant is not entitled to relief

because he agreed that he was not entitled to an

instruction on self-defense based upon the evidence

22

presented, and agreed with counsel’s decision not to

request an instruction on self-defense. Further,

Defendant’s statement would not have supported an

instruction on self-defense because: (1) Defendant

admitted that he did not think the victim was armed

at the time of the shooting; (2) Defendant took time to

aim before shooting the victim in the back; and (8)

Defendant did not describe the victim’s movements as

threatening when questioned by detectives.

Accordingly, Defendant is not entitled to relief on

Ground Four.

Id. at 159-60 (record citations omitted). The First DCA per curiam affirmed

the denial of relief without a written opinion. Id. at 902.

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

Court applies 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. Therefore, McChriston is not entitled to relief on the basis of

this claim.

* 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.

23

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

not entitled to deference, McChriston’s ineffectiveness claim is still without

merit because the record supports the postconviction court’s conclusion.

“Where there is any evidence introduced at trial which supports the theory of

the defense, a defendant is entitled to have the jury instructed on the law

applicable to his theory of defense when he so requests.” Bryant v. State, 412

So. 2d 347, 350 (Fla. 1982). At the time of the offense, Florida law provided

that a person was justified in using deadly force in self-defense if he

reasonably believed that such force was necessary to prevent imminent death

or great bodily harm or to prevent the imminent commission of a forcible

felony. See Fla. Stat. § 776.012 (2012).

In this case, the evidence introduced at trial did not support a self-

defense instruction. Rather, witness testimony established that the murder

occurred when McChriston and three other individuals, all armed with guns,

went to the victim’s house to confront him about a domestic violence incident.

During McChriston’s interview with law enforcement, he stated that he did

not think the victim had a gun during the altercation, and McChriston did

not describe the victim’s movements before the shooting as threatening. Doc.

5-8 at 154, 157. Notably, medical examiner Dr. Valerie Rao testified that the

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victim sustained most of his injuries to his back, and the bullet from the fatal

gunshot wound entered through his back. Doc. 5-7 at 311-13. Based on the

above, counsel was not deficient when she failed to request a jury instruction

for a defense that the evidence did not support. See Brown v. Warden, 562 F.

App’x 779, 781 (11th Cir. 2014) (‘Whether defense counsel erred by not

requesting a specific jury instruction depends on the state law that governed

the defendant’s trial... . Pursuant to Florida law, defense counsel is not

ineffective for failing to request a jury instruction that is not warranted by

the evidence.”). Accordingly, McChriston is not entitled to federal habeas

relief on the claim in Ground Six.

E. Grounds Seven through Twelve

In Grounds Seven through Eleven, McChriston alleges counsel was

ineffective when she failed to object to improper prosecutorial comments

during closing arguments. See Petition at 26-38. As Ground Twelve, he

asserts that counsel was ineffective when she failed to object and move for a

mistrial based on a sleeping juror. Id. at 39-40. McChriston raised

substantially similar claims in his Rule 3.850 motion. Doc. 5-9 at 69—75.

Following an evidentiary hearing, the postconviction court denied relief. Id.

25

at 160-65. The First DCA per curiam affirmed the denial of relief without a

written opinion. Id. at 902.

Respondents argue that McChriston did not properly exhaust the

claims in Grounds Seven through Twelve because he failed to invoke one

complete round of the state’s appellate review process. See Response at

14-20. According to Respondents, McChriston abandoned the claims on

appeal when he failed to raise them in his initial brief, and, therefore, they

are procedurally barred from federal habeas review. Id. In his Reply,

McChriston does not appear to address Respondents’ exhaustion argument.

See Reply at 15-21.

The record reflects that McChriston filed a pro se brief on appeal of the

postconviction court’s denial of his Rule 3.850 motion, but he did not raise the

instant claims in his brief. Doc. 5-9 at 864—80. Therefore, McChriston failed

to exhaust the claims in Grounds Seven through Twelve. See Atwater v.

Crosby, 451 F.8d 799, 810 (11th Cir. 2006) (a petitioner abandons a claim

when he receives an evidentiary hearing and fails to raise claim in a brief on

appeal); Wade v. State, 201 So. 3d 806, 807 (Fla. 1st DCA 2016) (“As the

appellant filed an initial brief but failed to address any of the remaining

[postconviction] claims, he has waived the right to have them considered in

26

this appeal.”). Moreover, he has failed to identify any fact warranting the

application of the fundamental miscarriage of justice exception. Because any

future attempt to exhaust the claims would be futile, they are procedurally

defaulted. McChriston has demonstrated neither cause and prejudice to

excuse his lack of exhaustion nor demonstrated a fundamental miscarriage of

justice has occurred. As such, Grounds Seven through Twelve are due to be

denied as procedurally barred.

VU. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If McChriston seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. The

Court should issue a certificate of appealability only if the petitioner makes

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

2253(c)(2). To make this substantial showing, McChriston “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. 473, 484 (2000)), or that “the

issues presented were ‘adequate to deserve encouragement to proceed

further,” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2008) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

27

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

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

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

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

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

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

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

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

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

of appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

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

WITH PREJUDICE.

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

and dismissing this case with prejudice.

3. If McChriston appeals the denial of the Petition, the Court denies

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

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

28

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

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

motion.

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

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this Lf day of

March, 2024.

/ 1 £0 L427.

VEY E. SCHLESEINGER

; Zisited Stace District Judge

Jax-9 3/5

Cc: Miles Timothy McChriston, #354136

Counsel of record

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