# Mustafa v. Florida Department of Corrections

> District Court, S.D. Florida · October 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10121075

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** October 3, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10121075

## How later opinions describe it (automated extraction)

- holding that an out-of-state arrest warrant and NCIC search was sufficient probable cause to receive a fugitive warrant under section 17-9-10

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CV-80949-RAR

FARES MUSTAFA,

Petitioner,

v.

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.
____________________________________________/
ORDER DENYING IN PART AND DISMISSING IN PART
HABEAS CORPUS PETITION

THIS CAUSE is before the Court on a pro se Petition for Writ of Habeas Corpus, filed
pursuant to 28 U.S.C. § 2254, challenging Petitioner’s convictions and sentences imposed by the
Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida, in Case No.
502011CF004854A. See Petition [ECF No. 1] (“Pet.”). Petitioner also filed a memorandum of
law in support of the Petition. See Memorandum of Law [ECF No. 7].1 Respondent filed a
Response to the Petition. See Response to Order to Show Cause (“Response”) [ECF No. 8].
Having carefully reviewed the record and governing law, and for the reasons set forth
below, the Court DENIES Ground 1 and DISMISSES Grounds 2 through 10 of the Petition.
PROCEDURAL HISTORY
On June 23, 2011, Petitioner was charged by Amended Indictment in Count 1 with first
degree murder of John Anderson with a firearm, in violation of Fla. Stat. § 782.04(1); in Count 2
with attempted first-degree murder of Katherine Coonrod with a firearm, in violation of Fla. Stat.

1 The memorandum of law addresses the same ten grounds argued in the Petition. See [ECF Nos. 1, 7].
§ 782.04(1); in Count 3 with burglary while armed with a firearm, in violation of Fla. Stat. §
810.02(1); and in Count 4 with shooting into a building, in violation of Fla. Stat. § 790.19. See
Amended Indictment [ECF No. 9-1] at 2–4.
Petitioner proceeded to trial on all four counts in the Amended Indictment. On June 10,
2014, a Palm Beach County jury found Petitioner guilty as charged in Counts 2 and 4. On Count
1, the jury found Petitioner guilty of the lesser included offense of second-degree murder with a
firearm, and the jury was unable to reach a verdict on Count 3. See Verdict [ECF No. 9-1] at 13-

16. The state trial court adjudicated Petitioner guilty in accordance with the jury’s verdict and
sentenced Petitioner to fifty (50) years on Count 1, followed by a consecutive sentence of thirty-
five (35) years on Count 2, followed by a consecutive sentence of four hundred and seventy-three
point eight (473.8) months on Count 4. See Sentencing Orders [ECF No. 9-1] at 18–26.
Petitioner appealed his convictions and 124-year sentence to Florida’s Fourth District
Court of Appeal (“Fourth DCA”). See Notice of Appeal [ECF No. 9-1] at 28. On direct appeal,
Petitioner argued that “[t]he cumulative effect of numerous and varied evidentiary errors and
improper comments by the prosecution during closing arguments violated Appellant’s federal and
state due process rights and requires that his convictions and sentences be reversed and remanded
for a new trial.” See Direct Appeal Initial Brief [ECF No. 9-1] at 68.

Specifically, Petitioner argued the following points: the trial court erred in allowing
“irrelevant and overly prejudicial” testimony regarding the location of the bullet holes in the
Schleppeler residence, id. at 69; the trial court erred in allowing “the admission of the 911 tape as
it was irrelevant, more prejudicial than probative and merely served to evoke sympathy for the
victim”, id. at 70; the trial court erred in allowing testimony concerning Petitioner’s failure to
express remorse prior to his arrest, id. at 71; the trial court erred in allowing Petitioner’s ex-
girlfriend to translate, from Arabic to English, and repeat statements made in a controlled call in
violation of Florida’s best evidence rule, id. at 71; the trial court erred in allowing the prosecution
to shift the burden of proof during its cross examination of Petitioner, id. at 75; and that numerous
improper comments during closing argument required reversal, id. at 79. Based on the cumulative
trial errors, Petitioner argued that due process was denied, and a new trial should be granted. Id.
at 82. On October 27, 2016, the Fourth DCA per curiam affirmed Petitioner’s conviction and
sentence. [ECF No. 9-1] at 133.
Thereafter, on January 30, 2017, Petitioner filed a motion to mitigate his sentence. See

Motion to Mitigate [ECF No. 9-1] at 137-145. Following a telephonic hearing, the trial court
denied the motion on March 13, 2017, without a written order. See [ECF No. 9-1] at 147.
On March 6, 2018, Petitioner, through counsel, filed a motion for postconviction relief in
the state trial court pursuant to Fla. R. Crim. P. 3.850. See Motion for Postconviction Relief [ECF
No. 9-1] at 149–85. The Motion for Postconviction Relief alleged one ground for relief: that trial
counsel was ineffective for “failure to challenge by way of a motion to suppress the confession
given by Mustafa in South Carolina” following his arrest. Id. at 153-160. The State responded,
id. at 166-177, Petitioner replied, id. at 179-182, and the trial court denied the Postconviction
motion. Id. at 184-189. Petitioner filed a timely notice of appeal. Id. at 191-192. Without the
filing of briefs, id. at 194, the Fourth DCA per curiam affirmed the trial court’s order denying

Petitioner’s motion for postconviction relief. Id. at 199. Petitioner moved for a written opinion,
id. at 198-202, and the Fourth DCA denied the request on July 11, 2022. Id. at 204.
On June 1, 2022, Petitioner filed a Second or Successive Motion for Post Conviction Relief
raising four grounds for relief. See Second Motion for Postconviction Relief [ECF No. 9-1] at
206-218. The Motion raised three additional grounds for relief alleging that trial counsel was
ineffective for: (1) “failing to object to unauthorized material in the jury room during
deliberations”, (2) “failing to object to error in the judge’s failure to give a complete jury
instruction on the lesser-included offense of manslaughter written and orally”, and (3) “failing to
object and the Court erred in failing to give Mustafa an opportunity to speak or address the Court
before imposing sentence.” Id. The trial court denied the motion, finding that it was untimely and
procedurally barred. Id. at 220-21. Petitioner pro se appealed the trial court’s order, id. at 223,
and at the time of this filing, the appeal remains pending in the Fourth DCA.2
Petitioner returned to the Fourth DCA on June 17, 20223, by filing a petition for writ of
habeas corpus alleging ineffective assistance of appellate counsel. See State Habeas Petition [ECF

No. 9-1] at 228-233. On July 26, 2022, the Fourth DCA dismissed the petition as untimely. See
Order Denying State Habeas Petition [ECF No. 9-1] at 235.
Petitioner filed the instant Petition in this Court on June 20, 2022.4 See Petition [ECF No.
1]. The Petition raises the following ten grounds for relief:
1. Ground One: “Ineffective assistance of counsel arising out of counsel’s failure
to challenge by way of a Motion to Suppress the confession given by Petitioner
in South Carolina following his arrest in South Carolina, based on an argument
that the arrest was illegal because it was made without first obtaining a South
Carolina Fugitive Warrant, and the confession was fruit of the poisonous tree
of the illegal arrest obtained in violation of Petitioner’s Fourth Amendment
Rights.” Pet. at 4-5.

2. Ground Two: “The court erred in allowing Halum to translate controlled call
statements made by herself and Petitioner from Arabic to English violating
Petitioner’s state and federal constitutional rights.” Id. at 5.

3. Ground Three: “Trial counsel was ineffective when failing to object to
transcripts given to the jury to review during deliberations. In allowing
transcripts, not considered as part of evidence, in the jury room during
deliberations Petitioner’s state and federal constitutional rights were violated.”
Id. at 6.

2 The Court takes judicial notice of the Fourth DCA docket at: http://onlinedocketsdca.flcourts.org/?court=4.

3 There is no visible prison date stamp on the pleading; in other cases, courts have used the date it was
signed by petitioner. See, e.g., Paul v. Inch, No. 18-20671-CV, 2020 WL 5633795, at *2 n.2 (S.D. Fla.
Feb. 6, 2020), report and recommendation adopted sub nom. Paul v. Sec’y, Fla. Dep’t of Corr., No. 18-
CV-20671-KMW, 2020 WL 5632711 (S.D. Fla. Sept. 21, 2020).

4 There is no prison date stamp on the Petition, but Petitioner signed it on June 20, 2022.
4. Ground Four: “Trial errors were harmful denying a fair trial and due process
of law as guaranteed by the Federal constitution.” Id. at 7-8.

5. Ground Five: “Trial counsel was ineffective when failing to object to trial
court’s incomplete jury instructions on the lesser included offense of
manslaughter and omitting manslaughter from the verdict form which is one-
step removed from second-degree murder in which Petitioner was found guilty,
violating Petitioner’s state and federal constitutional rights.” Id. at 8.

6. Ground Six: “Standard of review of the trial court’s evidentiary rulings were
abuse of discretion violating Petitioner’s state and federal constitutional rights.”
Id. at 9-10.

7. Ground Seven: “Counsel was ineffective by failing to raise the issue that the
victim made an in-court identification of Petitioner violating Petitioner’s state
and federal constitutional rights.” Id. at 10-11.

8. Ground Eight: “Counsel was ineffective for failing to fully raise the issue that
Petitioner’s confession was illegally obtained.” Id. at 10-11.

9. Ground Nine: “Counsel was ineffective by failing to raise the issue that the
trial court erred in not giving the Petitioner an opportunity to speak or address
the Court before imposing the sentence.” Id. at 11-12.

10. Ground Ten: “Counsel was ineffective by failing to raise the issue that
Petitioner’s trial counsel, direct appeal counsel, and postconviction counsel
were all distracted with their own serious life issues.” Id. at 12.

STANDARD OF REVIEW
A. Review Under 28 U.S.C. § 2254
“As amended by [the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)],
28 U.S.C. § 2254 sets several limits on the power of a federal court to grant an application for a
writ of habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011). Some of the more restrictive limits are found in § 2254(d). Under that provision, a federal
court may grant habeas relief from a state court judgment only if the state court’s decision on the
merits was (1) contrary to, or 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). Consequently, § 2254(d) constructs a “highly deferential standard for evaluating
state-court rulings” because, after all, this standard “demands that state-court decisions be given
the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
“A state court’s decision is ‘contrary to’ federal law 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.’” Consalvo v. Sec’y, Fla. Dep’t of Corr., 664 F.3d 842, 844 (11th Cir. 2011) (quoting
Williams v. Taylor, 529 U.S. 362, 412–13 (2000)) (brackets omitted). A state court’s decision
qualifies as an “an unreasonable application of federal law 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. (quoting Williams, 529 U.S. at 413) (cleaned up).
“‘If this standard [seems] difficult to meet’—and it is—‘that is because it was meant to be.’” Burt
v. Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).
By its own plain terms, § 2254(d)’s deferential standard applies only when a claim “was
adjudicated on the merits in State court proceedings[.]” 28 U.S.C. § 2254(d); see also Cullen, 563
U.S. at 181 (“If an application includes a claim that has been adjudicated on the merits in State

court proceedings, § 2254(d), an additional restriction applies.”); Cone v. Bell, 556 U.S. 449, 472
(2009) (“Because the Tennessee courts did not reach the merits of Cone’s Brady claim, federal
habeas review is not subject to the deferential standard that applies under AEDPA.”). The
summary denial of a claim with no articulated reasons presumptively serves as an adjudication on
the merits subjecting the claim to § 2254(d)’s additional restrictions. See Richter, 562 U.S. at 100
(“This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons
before its decision can be deemed to have been ‘adjudicated on the merits.’”). This is because
federal courts ordinarily presume that § 2254(d)’s deferential standard applies when a
constitutional claim has been presented to a state court and denied in that forum. See, e.g., id. at
99 (“When a federal claim has been presented to a state court and the state court has denied relief,
it may be presumed that the state court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.”).
At the same time, “federal court[s] should ‘look through’ [an] unexplained decision to the
last related state-court decision that does provide a relevant rationale” if one exists. See Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018) (emphasis added). From there, federal courts “presume that
the unexplained decision adopted the same reasoning.” Id. “[T]he State may rebut [that]
presumption by showing that the unexplained affirmance relied or most likely did rely on different
grounds than the lower state court’s decision, such as alternative grounds for affirmance that were
briefed or argued to the state supreme court or obvious in the record it reviewed.” Id.
In addition to the standard of review imposed by AEDPA, the petitioner must also show
that any constitutional error had a “substantial and injurious effect or influence” on the verdict to
be entitled to habeas relief. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The Supreme Court
has explained that, while the passage of AEDPA “announced certain new conditions to [habeas]
relief,” it did not supersede or replace the harmless error standard announced in Brecht. Brown v.

Davenport, 142 S. Ct. 1510, 1524 (2022). In other words, a habeas petitioner must also satisfy
Brecht, even if AEDPA applies. See id. (“[A] federal court must deny relief to a state habeas
petitioner who fails to satisfy either [Brecht] or AEDPA. But to grant relief, a court must find that
the petition has cleared both tests.”) (emphasis in original); see also Mansfield v. Sec’y, Dep’t of
Corr., 679 F.3d 1301, 1307 (11th Cir. 2012) (“[A] habeas petition cannot be successful unless it
satisfies both [AEDPA] and Brecht.”).
B. Ineffective Assistance of Counsel Claims
The Sixth Amendment affords a criminal defendant the right to “the Assistance of Counsel
for his defense.” U.S. Const. amend. VI. “The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of counsel,
a habeas litigant must demonstrate “that (1) his counsel’s performance was deficient and ‘fell

below an objective standard of reasonableness,’ and (2) the deficient performance prejudiced his
defense.” Raleigh v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 938, 957 (11th Cir. 2016) (quoting
Strickland, 466 U.S. at 687–88). This same standard applies to errors made by both trial counsel
and appellate counsel. See Grubbs v. Singletary, 120 F.3d 1174, 1176 (11th Cir. 1997).
Regarding the deficiency prong, “a petitioner must establish that no competent counsel
would have taken the action that his counsel did take” during the proceedings. Chandler v. United
States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). If “some reasonable lawyer at the trial
could have acted, in the circumstances, as defense counsel acted at trial[,]” counsel did not perform
deficiently. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (quoting White v. Singletary,
972 F.2d 1218, 1220 (11th Cir. 1992)).

As for the second prong, “a defendant is prejudiced by his counsel’s deficient performance
if ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Porter v. McCollum, 558 U.S. 30, 40 (2009) (quoting
Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. A court need not address both prongs
of Strickland if the defendant makes an insufficient showing on one of the prongs. See id. at 697;
Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013).
PROCEDURAL REQUIREMENTS
A. Timeliness
Generally, “a person in custody pursuant to the judgment of a State court” has a one-year
period to file a habeas corpus petition. See 28 U.S.C. § 2244(d)(1). The parties agree that the
Petition was timely filed. See [ECF No. 1] at 14; [ECF No. 8] at 4. Having reviewed the record
in full, the Court finds that the Petition was timely filed.
B. Exhaustion/Procedural Default

Pursuant to 28 U.S.C. § 2254(b)–(c), habeas petitioners must also exhaust their claims
before presenting them in a federal habeas petition. See Johnson v. Florida, 32 F.4th 1092, 1096
(11th Cir. 2022) (“Plainly, the purpose of the exhaustion requirement is to afford the state court
‘the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.’”)
(quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)). This requirement is met if a petitioner “fairly
present[ed] every issue raised in [their] federal petition to the state’s highest court, either on direct
appeal or on collateral review.” See Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (cleaned
up). “If a petitioner fails to ‘properly’ present [their] claim to the state court—by exhausting [their]
claims and complying with the applicable state procedure—prior to bringing [their] federal habeas
claim, then [§ 2254] typically bars [courts] from reviewing the claim.” Id. In other words, where

a petitioner has not “properly presented his claims to the state courts,” the petitioner will have
“procedurally defaulted his claims” in federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 848
(1999) (emphasis in original). “In Florida, exhaustion usually requires not only the filing of a
[Florida Rule of Criminal Procedure 3.850] motion, but an appeal from its denial.” Nieves v. Sec’y,
Fla. Dep’t of Corr., 770 F. App’x 520, 521 (11th Cir. 2019) (quoting Leonard v. Wainwright, 601
F.2d 807, 808 (5th Cir. 1979)).
There are two equitable exceptions to the procedural default rule: “cause and prejudice”
and “actual innocence.” See Dretke v. Haley, 541 U.S. 386, 393 (2004) (“[A] federal court will
not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a
showing of cause and prejudice to excuse the default. We have recognized a narrow exception to
the general rule when the habeas applicant can demonstrate that the alleged constitutional error
has resulted in the conviction of one who is actually innocent of the underlying offense.”). To
demonstrate “cause and prejudice,” Petitioner must show that “some objective factor external to

the defense impeded the effort to raise the claim properly in the state court[,]” and that, had the
claim been properly raised, “there is at least a reasonable probability that the result of the
proceeding would have been different.” Harris v. Comm’r, Ala. Dep’t of Corr., 874 F.3d 682, 688
(11th Cir. 2017).
In contrast, the actual innocence exception can only be met when the petitioner provides
new evidence showing that “it is more likely than not that no reasonable juror would have
convicted the petitioner.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (quoting Schlup v.
Delo, 513 U.S. 298, 329 (1995)). Petitioner bears the sole burden of proving that either one of
these exceptions would excuse a procedural default. See Gordon v. Nagle, 2 F.3d 385, 388 (11th
Cir. 1993) (“A defendant has the burden of establishing cause and prejudice.”); Arthur v. Allen,

452 F.3d 1234, 1245 (11th Cir. 2006) (“The petitioner must support the actual innocence claim
with new reliable evidence[.]”) (cleaned up).
Similar to a limitations defense, the respondent also has the option to waive an exhaustion
defense. See 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement unless the State, through counsel,
expressly waives the requirement.”). Here, Respondent concedes that Ground 1 of the Petition has
been exhausted. See [ECF No. 8] at 5-6. Having waived any procedural objections to Ground 1,
the Court shall review that ground for relief on the merits without independently analyzing its
exhaustion status. See Vazquez v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 964, 966 (11th Cir. 2016)
(“States can waive procedural bar defenses in federal habeas proceedings, including exhaustion.”)
(cleaned up).
However, Respondent has raised exhaustion defenses to all other grounds in the Petition
and requests that the Court dismiss these claims as procedurally defaulted. The Court will address
each of these exhaustion arguments in turn.

1. Ground 2 is Procedurally Defaulted
The Court disagrees with Respondent’s premise that this claim was not alleged
“individually as a violation of his due process rights.” [ECF No. 8] at 6. On direct appeal,
Petitioner argued that “cumulative evidentiary errors” deprived him of his due process right to a
fair trial under the Federal and State constitutions. See [ECF No. 9-1] at 69. Among the
cumulative errors, Petitioner alleged that “[t]he Court erred in allowing Halum to repeat statements
she had translated from Arabic to English made by herself and Appellant in the controlled call in
violation of the best evidence rule.” Id. at 71-72.
However, the Court still concludes that the claim is procedurally defaulted as the issue is
one of state law and, therefore, not cognizable in a federal habeas action. See Branan v. Booth,

861 F.2d 1507, 1508 (11th Cir. 1988). Petitioner argues that he “objected on grounds that the
controlled call spoke for itself.” [ECF No. 1] at 5. On direct appeal, he argued that the trial judge
misinterpreted Florida’s “best evidence rule,” as codified in section 90.952 of the Florida Statutes,
and he cited two Florida cases in support of his argument. See [ECF No. 9-1] at 71-75.
While the Petition may be “couched in terms of equal protection and due process,” the
Court finds that it actually involves state law issues. Willeford v. Estelle, 538 F.2d 1194, 1198
(5th Cir. 1976). Because Ground 2 of the Petition only raises issues of state law, it must be
dismissed. McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992)
(“A state’s interpretation of its own laws or rules provides no basis for federal habeas corpus relief,
since no question of a constitutional nature is involved.”). Ground 2 is thus DISMISSED.
2. Ground 3 is Barred Under the Independent and Adequate State Ground Doctrine
The Court finds that Ground 3 is procedurally defaulted under the “independent and
adequate state procedural ground” doctrine. This doctrine precludes a federal court from
reviewing a petitioner’s habeas claims—even if it raises valid matters of federal constitutional

law—if “(1) a state court has declined to address those claims because the prisoner had failed to
meet a state procedural requirement, and (2) the state judgment rests on independent and adequate
state procedural grounds.” Maples v. Thomas, 565 U.S. 266, 280 (2012) (cleaned up). In denying
the Second Motion for Postconviction Relief, the trial court found that “[d]efendant’s judgment
and sentence became final on December 2, 2016. As Defendant’s instant motion was filed on
June 1, 2022, Defendant’s Motion is untimely and procedurally barred.” [ECF No. 9-1] at 221.
Under Florida’s procedural rules, a Rule 3.850 postconviction motion cannot be filed
“more than 2 years after the judgment and sentence become final[.]”. Fla. R. Crim. P. 3.850(b).
Although an amended rule 3.850 generally relates back to the original postconviction motion’s
filing date, any “[n]ew claims for relief contained in an amendment need not be considered by the

court unless the amendment is filed within the time frame specified in subdivision (b).” Id.
3.850(e); see, e.g., Venable v. State, 227 So. 3d 644, 645 (Fla. 4th DCA 2017) (“The first two
claims relate back to the original motion, which was timely filed. . . . The third claim does not
relate back to the original motion, and it was not timely filed within the two-year time limit for
rule 3.850(b) motions.”).
The state postconviction court found that the substance of Ground 3 was not raised until
June 1, 2022. The state postconviction court concluded that this claim was time-barred pursuant
to Rule 3.850(b)’s time limits; consequently, the Court must find that Ground 3 has been
procedurally defaulted because it was disposed of under an independent and adequate state
procedural ground. See McCullough, 967 F.2d at 535. Ground 3 is thus DISMISSED.
3. Ground 4 is Barred Under the Independent and Adequate State Ground Doctrine
Petitioner’s Motion for Postconviction Relief makes no mention of jury instructions. See
[ECF No. 9-1] at 149-162. The state postconviction court found that the substance of Ground 4
was not raised until Petitioner’s June 1, 2022, Second Motion for Postconviction Relief. [ECF No.

9-1] at 221. For the previously stated reasons, Ground 4 has been procedurally defaulted because
it was disposed of under an independent and adequate state procedural ground. Ground 4 is thus
DISMISSED.
4. Ground 5 is Barred Under the Independent and Adequate State Ground Doctrine
As previously noted, Petitioner’s Motion for Postconviction Relief makes no mention of
jury instructions. See [ECF No. 9-1] at 149-162. The state postconviction court found that the
substance of Ground 5 was not raised until Petitioner’s June 1, 2022, Second Motion for
Postconviction Relief. [ECF No. 9-1] at 221. For the previously stated reasons, Ground 5 has
been procedurally defaulted because it was disposed of under an independent and adequate state
procedural ground. Ground 5 is thus DISMISSED.

5. Ground 6 is Unexhausted
Petitioner asserts that the trial court erred “when it allowed the victim to make an in-court
identification of Petitioner,” and he states that he raised this claim on direct appeal. [ECF No. 1]
at 9. Respondent counters that this alleged error was not discussed as one of the cumulative errors
in Petitioner’s Initial Brief on direct appeal, [ECF No. 9-1] at 68-78, and therefore the claim is
unexhausted. Having carefully reviewed the record in full, the Court agrees with Respondent.
On direct appeal, Petitioner argued that the cumulative effect of five categories of
evidentiary errors—in addition to a list of improper comments by the prosecutor in closing
argument—warranted reversal and remand for a new trial. [ECF No. 9-1] at 69-83. At no point
does Petitioner mention an in-court identification. See id. The Court finds that this claim is
unexhausted in state court. Consequently, Ground 6 is procedurally defaulted in federal court.
Petitioner also fails to allege that an equitable exception to the procedural default rule
applies. However, the Court notes that any such argument would fail as Petitioner’s claim is

refuted by the record—Victim Coonrod did not make an in-court identification of him. See [ECF
No. 10-2] at 166. Rather, the following transpired during the victim’s direct examination by the
prosecutor:
Q. “Now, you have been sitting here, and I’d
like to ask you, now we are almost four years
after the incident, are you able to positively,
with certainty, point out anyone in this
courtroom that is the gunman that shot you?”

A. “No.”

Id. Ground 6 is thus DISMISSED.
6. Ground 7 is Unexhausted
Petitioner asserts post-conviction counsel was ineffective in failing to raise that the victim
made an in-court identification of Petitioner, thereby violating his state and federal constitutional
rights. [ECF No. 1] at 10. Petitioner states that he raised this claim in his Second or Successive
Motion for Post-Conviction Relief, but Respondent counters that the claim was not raised in that
motion. See [ECF No. 8] at 8-9. Having carefully reviewed the record in full, the Court finds the
claim was not raised in Petitioner’s Second Motion for Postconviction Relief, see [ECF No. 9-1]
at 206-218, and was thus unexhausted in state court. Consequently, Ground 7 is procedurally
defaulted in federal court and neither equitable exception to the procedural default rule applies.
Ground 7 is thus DISMISSED.
7. Ground 8 is Unexhausted
Petitioner asserts that this claim, concerning counsel’s failure to introduce internal affairs
records, was raised in his Second or Successive Motion for Post-Conviction Relief. See [ECF No.
1] at 11. Respondent counters that the claim was not raised. See [ECF No. 8] at 9. Having
carefully reviewed the record in full, the Court finds that the issue was unexhausted below and is

therefore procedurally defaulted in federal court. See Second Post-Conviction Motion [ECF No.
9-1] at 206-274.
Moreover, neither equitable exception to the procedural default rule applies. Petitioner’s
allegations concerning Detective Vansteenburgh’s internal affairs records in a separate case—and
termination on an unrelated issue after trial—do not create “a reasonable probability that the result
of the proceeding would have been different,” Harris, 874 F.3d at 688, or make it “more likely
than not that no reasonable juror would have convicted the petitioner.” McQuiggin, 569 U.S. at
383. Ground 8 is thus DISMISSED.
8. Ground 9 is Barred Under the Independent and Adequate State Ground Doctrine
Petitioner’s Motion for Postconviction Relief makes no mention of the trial court’s failure

to give Petitioner an opportunity to speak at sentencing. See [ECF No. 1] at 11-12. The state
postconviction court found that the substance of this ground was not raised until Petitioner’s June
1, 2022, Second Motion for Postconviction Relief. [ECF No. 9-1] at 221. For the previously stated
reasons, Ground 9 has been procedurally defaulted because it was disposed of under an
independent and adequate state procedural ground. Ground 9 is thus DISMISSED.
9. Ground 10 is Barred Under the Independent and Adequate State Ground Doctrine

Petitioner argues ineffective assistance in that his trial, appellate, and post-conviction
counsel were all distracted with their own serious life issues. See [ECF No. 1] at 12-13. This issue
was not raised in Petitioner’s Second or Successive Motion for Postconviction Relief. See [ECF
No. 9-1] at 206-274. Petitioner did raise the issue in his “Motion Under Rule 9.141 Review
Proceedings” in the Fourth DCA. See id. at 232-33. However, the Fourth DCA dismissed the
petition as untimely. See id. at 235. For the previously stated reasons, this ground has been
procedurally defaulted because it was disposed of under an independent and adequate state
procedural ground. Ground 10 is thus DISMISSED.
ANALYSIS
Having determined that Grounds 2 through 10 of the Petition must be dismissed, the Court
will now analyze the merits of Ground 1. In Ground 1, Petitioner asserts ineffective assistance
due to counsel’s failure to challenge, by way of a motion to suppress, his arrest and confession in
South Carolina without a South Carolina fugitive warrant. See [ECF No. 1] at 4-5. Petitioner does
not claim that his confession was coerced or involuntary. See id. Rather, he argues that it flowed
from a warrantless, illegal arrest, and should be suppressed as fruit of the poisonous tree. See id.
In applying the standard of review set out in § 2254(d), the Court must review the

reasonableness of the factual findings and legal conclusions made by “the highest state court
decision reaching the merits of a habeas petitioner’s claim[.]”. Newland v. Hall, 527 F.3d 1162,
1199 (11th Cir. 2008). Although the Fourth DCA was the highest court to review all of Petitioner’s
claims on the merits, it did not issue a written opinion explaining its reasoning. See [ECF No. 9-
1] at 133. Accordingly, the Court must “‘look-through’ the unexplained decision to the last related
state-court decision that does provide a relevant rationale.” Wilson, 138 S. Ct. at 1192.
The relevant rationale is found in the trial court’s Order Denying Defendant’s Motion for
Postconviction Relief. [ECF No. 9-1] at 184-88. In denying the claim, the trial court explained:
Although an arrest warrant is usually required to arrest a defendant,
both Florida and South Carolina recognize that an arrest is still
legal if law enforcement had probable cause to suspect that a
felony had been committed by the person being arrested. State
v. Baccus, 625 S.E. 2d 216, 220 (S.C. 2006) (citing State v. George,
476 S.E. 2d 903, 911 (S.C. 1996)); State v. Cromartie, 419 So. 2d
757, 759 (Fla. 1st DCA 1982). Compare § 901.15(2), (3), Fla. Stat.
(2010), with S.C. Code Ann. § 17-13-10 (2010). In South Carolina,
a law enforcement officer has probable cause to conduct a
warrantless arrest if there are “reasonable grounds to suspect the
party arrested may be guilty of a felony,” or that “circumstances
within the arresting officer’s knowledge are sufficient to lead a
reasonable person to believe that a crime has been committed by the
person being arrested.” State v. Swilling, 155 S.E. 2d 607, 617 (S.C.
1967); Baccus, 625 S.E. 2d at 220.

Upon review of the record, the Court concludes that the
Orangeburg County Sheriffs Office’s warrantless arrest was
legal since they had probable cause to believe that Defendant
had committed a felony. It is undisputed that South Carolina
law enforcement had received Defendant’s Florida warrant
prior to his arrest. (State Resp., Ex. “B,” Arrest Warrant; Ex. “C,”
South Carolina Incident Report.). An out-of-state arrest warrant
is sufficient probable cause to obtain a fugitive warrant and is
thus sufficient probable cause to effectuate a warrantless arrest
of a fugitive. See S.C. Code Ann. §§ 17-9-10, 17-13-10. See also
Jones v. Camden Police Dep’t, No. 09-2161, 2010 WL 3489021, at
*4 (D.S.C. Aug. 13, 2010), aff’d 417 F. App’x 351 (4th Cir. 2011)
(holding that an out-of-state arrest warrant and NCIC search was
sufficient probable cause to receive a fugitive warrant under section
17-9-10); Foss v. United States Marshals Serv., 541 F. App’x 745,
746 (9th Cir. 2013) (holding the same).

In his Reply, Defendant argues, without citing any case law or
statute, South Carolina law does not allow for the warrantless arrest
of a person whose offenses occurred outside of the state. This is
simply untrue. South Carolina’s warrantless arrest law only requires
that law enforcement have “certain information that a felony has
been committed,” and does not differentiate between in-state or out-
of-state felonies. S.C. Code Ann. § 17-13-10 (2010). In addition,
federal courts have recognized for over one hundred years that “a
police officer in one jurisdiction may arrest without a warrant a
fugitive from another jurisdiction so long as the arresting officer has
probable cause to make the arrest and the arrest is lawfully effected
in the jurisdiction where it is made.” United States v. Miles, 413
F.2d 34, 40 (3d Cir. 1969) (emphasis added) (citing Stallings v.
Splain, 253 U.S. 339, 341 (1920)). South Carolina law is clear that
the Orangeburg County Sheriff’s Office had probable cause to arrest
Defendant because it had knowledge of a Florida warrant charging
Defendant with multiple felonies, and that a warrantless arrest is
proper when law enforcement has reason to believe that a person has
committed a felony. See S.C. Code Ann. § 17-13-10 (2010);
Baccus, 625 S.E.2d at 220. Since Defendant’s arrest was legal,
trial counsel cannot be ineffective for failing to file a meritless
motion to dismiss based on the “fruit of the poisonous tree.” See
Lebron v. State, 135 So. 3d at 1053. For this reason, Defendant’s
Motion must be denied as legally insufficient. Id. at 187-88.5

Having carefully reviewed the record in full, the Court finds nothing unreasonable with the
trial court’s rejection of ineffective assistance of counsel in Ground 1. Wilson, 138 S. Ct. at 1192
(requiring a federal court sitting in habeas to defer to “reasonable” reasons given by the state court
in rejecting a claim for relief). As the trial court notes, an out-of-state arrest warrant is sufficient
probable cause to obtain a fugitive warrant and is thus sufficient probable cause to effectuate a
warrantless arrest of a fugitive. Because South Carolina law enforcement had received
Defendant’s Florida warrant prior to his arrest, the arrest was legal. As such, there was no legal
basis for counsel to file a motion to suppress. See Freeman v. Att’y Gen., 536 F.3d 1225, 1233
(11th Cir. 2008) (“A lawyer cannot be deficient for failing to raise a meritless claim[.]”).
In conclusion, Petitioner cannot be prejudiced by counsel’s failure to file a meritless
claim—and counsel was certainly not deficient for failing to do so. Accordingly, this claim is
denied under both the “prejudice” and “deficient performance” prongs of Strickland. 466 U.S. at
687-88. Ground 1 is thus DENIED.

5 The trial court mistakenly refers to a motion to “dismiss,” rather than to “suppress” evidence. However, in
context, it is clear the trial court was referring to a motion to suppress. This error does not affect the outcome of
the Petition.
EVIDENTIARY HEARING
No evidentiary hearing is warranted in this matter. See Shriro v. Landrigan, 550 U.S. 465,
474 (2007) (“[I]f the [state court] record refutes the applicant’s factual allegations or otherwise
precludes habeas relief, a district court is not required to hold an evidentiary hearing.”).
CERTIFICATE OF APPEALABILITY
After careful consideration of the record in this case, the Court declines to issue a certificate
of appealability (“COA”). A habeas petitioner has no absolute entitlement to appeal a district

court’s final order denying his habeas petition. Rather, to pursue an appeal, a petitioner must
obtain a COA. See 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009).
Issuance of a COA is appropriate only if a litigant makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, litigants must show that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). And “[w]here a district court has
disposed of claims . . . on procedural grounds, a COA will be granted only if the court concludes
that ‘jurists of reason’ would find it debatable both ‘whether the petition states a valid claim of the
denial of a constitutional right’ and ‘whether the district court was correct in its procedural ruling.’”
Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001) (quoting Franklin v. Hightower, 215 F.3d

1196, 1199 (11th Cir. 2000)).
Here, reasonable jurists would not debate the correctness of the Court’s denial of Ground
1, nor would any reasonable jurist second-guess the Court’s ruling that Grounds 2 through 10 are
procedurally defaulted. Accordingly, a COA must be denied on all claims.
CONCLUSION
Having carefully reviewed the record and governing law, it is hereby
ORDERED AND ADJUDGED that the Petition [ECF No. 1] is DISMISSED in part and
DENIED in part. Ground | is DENIED. Grounds 2 through 10 are DISMISSED as procedurally
defaulted. Any request for a certificate of appealability is DENIED, and an evidentiary hearing is
DENIED. All deadlines are TERMINATED, and any pending motions are DENIED as moot.
Accordingly, this case is CLOSED.
DONE AND ORDERED in Fort Lauderdale, Florida, this 3rd day of October, 20272.

RODOLEFO A. RUIZ II
UNITED STATES DISTRICT JUDGE

cc: Counsel of record
Fares Mustafa
W18115
Desoto Annex
Inmate Mail/Parcels
13617 SE Highway 70
Arcadia, FL 34266
PRO SE

Page 20 of 20

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121075. Public record. Not legal advice.