McCormack v. Florida Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-60555-BLOOM

ORLAND McCORMACK,

Petitioner,

v.

FLORIDA DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER ON MOTION FOR RECONSIDERATION

THIS CAUSE is before the Court upon Petitioner Orland McCormack’s Motion to

Reconsider, Alter, or Amend Judgment, ECF No. [20] (the “Motion”), filed on June 6, 2022.

Therein, McCormack seeks reconsideration of the Court’s Order of Dismissal, ECF No. [19],

denying his petition as untimely. The State did not file a response. For the reasons set forth below,

the Motion is granted, but McCormack’s Petition is denied.

I. BACKGROUND

On October 8, 2020, McCormack filed a Petition for Writ of Habeas Corpus Under 28

U.S.C. § 2254 by a Person in State Custody, ECF No. [13] (the “Petition”). See ECF No. [19] at 1

n.1 (explaining that McCormack provided his Petition to prison authorities for mailing on October

8, 2020); Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009) (“Under the ‘prison

mailbox’ rule, a pro se prisoner’s court filing is deemed filed on the date it is delivered to prison

authorities for mailing.”).

Following briefing, the Court dismissed the Petition as time barred by the one-year statute

of limitations applicable to § 2254 petitions, as set forth in the Antiterrorism and Effective Death

Penalty Act (“AEDPA”). ECF No. [19] at 3. The Court reasoned that the one-year period

commenced on September 15, 2017, thirty days after the Fourth District Court of Appeal (“Fourth

DCA”) affirmed McCormack’s convictions, since that is the period in which he could have sought

discretionary review by the Florida Supreme Court. Id. at 4-5. Because McCormack “did not seek

review from Florida’s highest court,” the Court concluded “he is not entitled to the 90-day period

for seeking certiorari review with the United States Supreme Court.” Id. at 5 n.5 (citing Phillips v.

Warden, 908 F.3d 667, 673 (11th Cir. 2018)). Applying September 15, 2017 as the trigger date for

the one-year limitations period, the Court concluded that the Petition was untimely. Id. at 6.

In the instant Motion, McCormack argues that this Court erred in determining the date

McCormack’s conviction became final. ECF No. [20]. He argues that the Fourth DCA’s

affirmance, albeit a “written opinion,” was not an elaborated opinion addressing any point of law

that would be subject to discretionary review by the Florida Supreme Court. Id. at 3. He therefore

argues that the Fourth DCA constituted his court of last resort in Florida, so he was entitled to the

90-day period after the Fourth DCA’s decision to seek certiorari to the U.S. Supreme Court. Id. at

5 (citing Supr. Ct. R. 13(1)). With the benefit of those additional 90 days, McCormack asserts that

his Petition was timely filed. Id. at 7.

II. LEGAL STANDARD

A motion for reconsideration is “an extraordinary remedy to be employed sparingly.”

Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370 (S.D. Fla. 2002). “The

burden is upon the movant to establish the extraordinary circumstances supporting

reconsideration.” Saint Croix Club of Naples, Inc. v. QBE Ins. Corp., No. 2:07-cv-00468-JLQ,

2009 WL 10670066, at *1 (M.D. Fla. June 15, 2009).

A motion for reconsideration must clearly “set forth facts or law of a strongly convincing

nature to demonstrate to the Court the reason to reverse its prior decision.” Am. Ass’n of People

with Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339 (M.D. Fla. 2003). As such, a court will not

reconsider its prior ruling without a showing of “clear and obvious error where the ‘interests of

justice’ demand correction.” Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., No. 6:11-cv-1637,

2013 WL 425827, at *1 (M.D. Fla. Feb. 4, 2013) (quoting Am. Home Assurance Co. v. Glenn

Estess & Assoc., 763 F.2d 1237, 1239 (11th Cir. 1985)).

III. DISCUSSION

A. Rule 60(b) Reconsideration

McCormack has demonstrated that the Court applied an incorrect legal standard when it

determined that the Fourth DCA’s affirmance was appealable to the Supreme Court of Florida. In

its Order of Dismissal, the Court stated: “Because the Fourth DCA affirmed Petitioner’s

convictions in a written opinion, the Florida Supreme Court had jurisdiction to review the

opinion.” ECF No. [19] at 5 n.5. McCormack is correct that the Supreme Court of Florida’s

jurisdiction does not turn on whether the Fourth DCA’s decision was “written.” ECF No. [20] at

2-6. Rather, the appealability of a DCA decision turns on whether it “contain[s] any discussion of

the facts in the case such that it could be said that the district court expressly addresse[d] a question

of law within the four corners of the opinion itself.” Gandy v. State, 846 So. 2d 1141, 1144 (Fla.

2003) (quotation marks omitted). The Supreme Court of Florida lacks jurisdiction to consider a

decision from a DCA that “does not contain any statement or citation establishing a point of law

upon which the decision rests.” Wheeler v. State, 296 So. 3d 895, 897 (Fla. 2020).

Upon closer examination of the Fourth DCA’s affirmance of McCormack’s convictions, it

is less clear that the affirmance was appealable to the Supreme Court of Florida. See McCormack

v. State, 226 So. 3d 871 (Fla. 4th DCA 2017). The affirmance states in full:

May, J.

We grant the State's motion for rehearing. In its motion, the State advised

the court that the record submitted on appeal failed to include the order denying the

defendant's motion under Florida Rule of Criminal Procedure 3.800(b)(2), which

addressed Williams v. State, 186 So.3d 989 (Fla. 2016). In fact, the record included

an affidavit attesting “there had been no order addressing the 4–12–16 Motion to

Correct Sentencing Error.” This was the sole basis for our reversal.

The State has now filed the order and the transcript from the hearing on the

Rule 3.800(b)(2) motion. We supplement the record with both, withdraw our prior

opinion, and affirm on all issues raised in the appeal.

Affirmed.

Taylor and Ciklin, J.J., concur.

Id. The Fourth DCA’s decision granted rehearing and withdrew its prior opinion, which had

remanded for resentencing in light of the Williams case. See ECF No. [16-1] at 90-93. The State

had agreed to resentencing because it believed the trial court was unaware of Williams when it

sentenced McCormack. See id. at 90. However, subsequent to the Fourth DCA’s remand, the State

discovered that the trial court had already resentenced McCormack in light of Williams. Id. at 96

(explaining that a “clerical error” led to the State’s error). The State supplemented the record and

successfully moved for reconsideration, leading to the decision copied in full above. Id.

McCormack asserts that the Fourth DCA’s affirmance after rehearing does not discuss the

facts of McCormack’s case, nor does it address a question of law. ECF No. [20] at 4. He argues

that it does nothing more than withdraw the prior, erroneous decision, and “affirm on all issues

raised in the appeal.” Id. The Government declined to respond to McCormack’s Motion, and the

Government did not address this specific issue in its original Response. See ECF No. [15] at 5

(arguing incorrectly that the affirmance was appealable because it was a “written opinion”).

The Court has found no authority directly addressing whether an affirmance like

McCormack’s is appealable to the Florida Supreme Court. Although McCormack is correct that

the Fourth DCA’s affirmance contains no discussion of the facts of McCormack’s trial, it does

contain a limited discussion of the procedural issue regarding McCormack’s entitlement to a

resentencing. McCormack, 226 So. 3d at 871. The Court therefore finds it likely that the Supreme

Court of Florida had jurisdiction to consider an appeal of the Fourth DCA’s affirmance.

Accordingly, as this Court previously decided, ECF No. [19] at 5 n.5, McCormack was not

entitled to the 90-day period to seek certiorari to the U.S. Supreme Court. See Phillips, 908 F.3d

at 673. His conviction therefore became final thirty days after the Fourth DCA’s affirmance was

issued, on September 15, 2017. Because that is more than one year before McCormack filed his

Motion for Postconviction Relief on November 1, 2018, ECF No. [16-1] at 104, his one-year

period under AEDPA expired long before his federal Petition was filed. The Court correctly

deemed McCormack’s Petition untimely.

However, due to the uncertainty regarding the appealability of the Fourth DCA’s

affirmance, and the State’s failure to contest McCormack’s position, the Court will entertain the

possibility that the Fourth DCA’s affirmance was not appealable, such that it constitutes the “state

court last resort” in this case, Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (quoting Supr. Ct. R.

13.1). In that regard, McCormack would be entitled to the 90-day period for filing a petition for

certiorari to the United States Supreme Court. Lowe v. Fla. Dep’t of Corrs., 679 F. App’x 756,

757-58 (11th Cir. 2017). His conviction would have become final 90 days after August 16, 2017:

November 14, 2017.

Applying that date as the trigger for the one-year AEDPA period, McCormack would have

accrued 352 days of AEDPA time until November 1, 2018, when he filed his Motion for

Postconviction Relief. ECF No. [16-1] at 104. Following denial, the appellate court’s affirmance,

and denial of rehearing, the mandate was issued on September 25, 2020, at which point the

AEDPA clock would have begun ticking once again. See id. at 207 (denial); id. at 294 (affirmance);

ECF No. [16-2] at 14 (denying rehearing); id. at 16 (mandate). From that date until October 8,

2020, the date when the instant Petition was deemed to have been filed, see ECF No. [19] at 1 n.1,

an additional 13 days passed.

Thus, if McCormack is correct regarding when his convictions became final, he would

have accrued a total of 352 + 13 = 365 untolled days prior to filing his Petition. His Petition would

therefore be considered timely.

While the Court has again rejected McCormack’s timeliness position, the Court recognizes

that “jurists of reason” could “find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, McCormack is

entitled to a certificate of appealability on the issue of timeliness.

Moreover, in light of the uncertainty regarding timeliness, the Court will proceed with a

merits analysis of the claims within McCormack’s Petition. See Trussell v. Bowersox, 447 F.3d

588, 590 (8th Cir. 2006) (considering the merits of a habeas petition despite its probable

untimeliness (citing Day v. McDonough, 547 U.S. 198 (2006), for the proposition that the AEDPA

statute of limitations is not a jurisdictional bar)); see also Damian v. Vaughn, 186 Fed. App’x 775,

at *1 n.1 (9th Cir. 2006) (considering the merits of an untimely habeas petition).

B. The Merits of McCormack’s Petition

In McCormack’s Petition, he attacks his convictions and sentences for battery, kidnapping

with a firearm, and aggravated assault with a firearm, following a jury trial in the Seventeenth

Judicial Circuit in Broward County, Florida, case number 12-16738-CF-10A. ECF No. [13] at 7.

In total, McCormack was sentenced to 30 years in prison. Id. In the instant Petition, he raises three

claims of trial court error and six claims of ineffective assistance of counsel. See id. at 11-29.

1. The Evidence at Trial

The State’s Case

The Government’s evidence in this case largely consisted of the testimony of the victim,

Samantha Baxter, and her eighteen-year-old daughter, Tiffany.

According to Samantha, she and McCormack got married in 2008. ECF No. [17-1] at 312.

According to Samantha, their “marriage had been on the rocks” from the start. Id. The couple

argued frequently, id.; McCormack was jealous and distrustful. Id. at 312, 406. He often accused

Samantha of infidelity and maintaining a relationship with George, her ex-boyfriend. Id. at 328.

On November 1, 2012, Samantha fell asleep in Tiffany’s room while watching a movie.

Id. at 321. McCormack called her around midnight to ask where she was. Id. at 322. Samantha

woke and went to a guest room to sleep. Id. at 324. She did not go to the room she and McCormack

formerly shared, because they had ceased sleeping together in that room due to disagreements. Id.

at 325.

Shortly after Samantha lay down on the bed in the guest room, McCormack entered and

accused her of sleeping with George. Id. at 328. McCormack then pulled out a gun and told her he

was going to shoot her in the head. Id. at 332. He inserted a magazine and loaded a bullet. Id. at

334-35. At this point, Samantha “spring[ed] off the bed” and enveloped McCormack in a “bear

hug.” Id. at 341-42. As the pair struggled, the gun discharged, but no one was hit. Id. at 344.

Having regained control, McCormack pointed the gun at Samantha’s head and pulled her

outside and into his car. Id. at 344. They drove to the house of McCormack’s friend, but they did

not enter. Id. at 355. McCormack then insisted Samantha take him to George’s house. Id. at 358.

While the car was stopped, Samantha saw an opportunity to disarm McCormack, who was driving

while holding the gun. Id. at 366. She grabbed his testicles, causing him to bend down and bite her

hand. Id. at 367. McCormack then apologized for biting Samantha and the two began driving back

to their home. Id. at 370.

At some point on the way home, McCormack nearly hit another car, causing a police officer

to follow them. Id. at 371. When they arrived home, the officer parked in front of the driveway

while McCormack exited his car. Id. at 373. The officer asked where McCormack and Samantha

were coming from and whether they saw the car that McCormack nearly hit. Id. McCormack

apologized and the officer departed. Id. at 374.

Upon returning home, the couple entered the guest room where the scuffle had occurred.

Id. at 381. The bullet had damaged the tile floor and a closet mirror. Id. at 381. Samantha began

cleaning the glass and bullet fragments. Id. at 384-85. She told McCormack to throw the gun in a

nearby lake. Id. at 388. After he left to do so, Samantha woke Tiffany, who was asleep in her bed,

and told her they had to go. Id. at 391. They went to the neighbor’s house, explained what

happened, and eventually called the police. Id. at 401.

Tiffany’s testimony was generally consistent with Samantha’s testimony. She stated that

McCormack was a jealous man who ruined her relationship with George, whom she considered to

be her father, because George recognized that his presence caused McCormack to create trouble.

Id. at 499-500.

On the night in question, Tiffany explained that she did not hear the fight in the guest room

or the shot fired because she is a hard sleeper. Id. at 486 (“My mom always yells at me for sleeping

so hard.”). In the morning, her mother had to physically shake her to wake her up. Id. at 498. After

entering the neighbor’s house, Samantha recounted to Tiffany what happened during the night,

and Tiffany insisted that they call the police. Id. at 495-96. Samantha initially refused, but

eventually consented to Tiffany calling the police. Id. at 497.

The State called Officer Gallardo, who testified as to his discussions with Tiffany,

Samantha, and McCormack following Tiffany’s call to the police. Id. at 515-534. He confirmed

that Samantha had a fresh bite mark on her hand and appeared to be in shock. Id. at 521-23.

Lastly, the State called a crime scene technician, who testified that she conducted

presumptive “gunshot residue testing” on Samantha’s hand. Id. at 561-62. The result of the test

was negative, indicating that Samantha did not fire the gun. Id. at 562. She did not conduct a test

on McCormack, because he was not present. Id. at 572.

McCormack’s Defense

McCormack’s defense consisted entirely of his own testimony. He admitted to being a

jealous person generally but denied being jealous of George specifically. Id. at 720-21. He claimed

to have an excellent relationship with Tiffany and explained how he supported her financially. Id.

at 619-21.

McCormack explained that, in the months leading up to the incident, he began to suspect

Samantha of getting money from a drug-dealing ex-boyfriend. Id. at 625-26. This suspicion was

based on new furniture and other expensive items she was purchasing that he did not think she

could afford. Id. at 623-24.

On the night in question, McCormack testified that when he entered the guest bedroom, he

found Samantha sitting in bed and counting money within a blue duffel bag. Id. at 632. He asked

where the money came from. Id. at 633. As he tried to approach, Samantha suddenly pulled a

firearm from the bottom of the bag and pointed it at McCormack’s forehead. Id. at 634.

Using his training as a police detective in Jamaica, McCormack did an evasive maneuver

and then pulled Samantha close to him to make it difficult for her to shoot him. Id. at 637. He bit

her hand to loosen her grip on the gun. Id. at 638. During the scuffle, the gun discharged. Id.

McCormack eventually succeeded in disarming Samantha and retrieving the gun. Id.

McCormack then threw the gun in a lake nearby their house. Id. at 644. McCormack began

to drive toward his friend’s house, but Samantha insisted on going with him. Id. at 646-47. When

they arrived at the friend’s house, the friend came out and spoke with them, advising them to call

the police and terminate their relationship. Id. at 648.

On the way home, McCormack swerved while driving, causing a police officer to pull him

over in front of his house. Id. at 648-49. The officer approached and asked if McCormack had been

drinking. Id. at 649. McCormack answered that he did not drink and had merely lost focus for a

minute while driving. Id. The officer was satisfied and departed. Id. at 650.

At home, McCormack went upstairs. Id. at 651. From the window, he saw Samantha leave

the house and walk to the neighbor’s house with the blue duffel bag full of money. Id. at 653. She

returned approximately one hour later. Id.

2. Legal Standard

Deference Under § 2254

A court’s review of a state prisoner’s federal habeas corpus petition is governed by the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Abdul–Kabir v. Quarterman, 550

U.S. 233, 246 (2007). “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.” Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642

(11th Cir. 2016) (quotation marks omitted). This standard is “difficult to meet.” White v. Woodall,

572 U.S. 415, 419 (2014) (quotation marks omitted).

According to AEDPA, a federal court may not grant a habeas petitioner relief on any claim

adjudicated on the merits in state court 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); see

also Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039, 1053 (11th Cir. 2017) (citing 28 U.S.C.

§ 2254(d)).

A state court decision is “contrary to” established Supreme Court precedent when it

(1) applies a rule that contradicts the governing law set forth by the Supreme Court; or

(2) confronts a set of facts materially indistinguishable from a decision of the Supreme Court and

nevertheless arrives at a result different from Supreme Court precedent. Williams v. Taylor, 529

U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal law is

different from an incorrect application of federal law. Id. at 410. Consequently, “[a] state court’s

determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists

could disagree on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.

86, 101 (2011) (quotation marks omitted). If the last state court to decide a prisoner’s federal claim

provides an explanation for its merits-based decision in a reasoned opinion, “a federal habeas court

simply reviews the specific reasons given by the state court and defers to those reasons if they are

reasonable.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

Even summary rejection of a claim, without explanation, qualifies as an adjudication on

the merits, warranting deference. See Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335,

1351 (11th Cir. 2019). If the state court’s merits determination is unaccompanied by an

explanation, federal courts should “‘look through’ the unexplained decision to the last related state-

court decision that does provide a relevant rationale” and “presume that the unexplained decision

adopted the same reasoning.” Wilson, 138 S. Ct. at 1192. Furthermore, a decision is still an

adjudication on the merits when it “addresses some but not all of a defendant’s claims.” Johnson

v. Williams, 568 U.S. 289, 298 (2013).

In sum, AEDPA “imposes a highly deferential standard for evaluating state-court rulings

. . . and demands that state-court decisions be given the benefit of the doubt[.]” Renico v. Lett, 559

U.S. 766, 773 (2010) (quotation marks and footnote omitted). Deferential review under § 2254(d)

is generally 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).

Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees criminal defendants

the right to assistance of counsel during criminal proceedings. See Strickland v. Washington, 466

U.S. 668, 684-85 (1984). When assessing counsel’s performance under Strickland, the Court

employs a strong presumption that counsel “rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 690. “[T]he Sixth

Amendment does not guarantee the right to perfect counsel; it promises only the right to effective

assistance[.]” Burt v. Titlow, 571 U.S. 12, 20 (2013). “Where the highly deferential standards

mandated by Strickland and AEDPA both apply, they combine to produce a doubly deferential

form of review that asks only ‘whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.’” Gissendaner v. Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013)

(quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).

To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate

both (1) that counsel’s performance was deficient; and (2) a reasonable probability that the

deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687-88; see also

Harrington, 562 U.S. at 104.

To establish deficient performance, the petitioner must show that, considering all

circumstances, “counsel’s conduct fell ‘outside the wide range of professionally competent

assistance.’” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009) (quoting

Strickland, 466 U.S. at 690). Strategic choices made after thorough investigation of the law and

facts relevant to plausible options are virtually unchallengeable. See Strickland, 466 U.S. at 690-

91. The court’s review of counsel’s performance should focus on “not what is possible or ‘what is

prudent or appropriate, but only [on] what is constitutionally compelled.’” Chandler v. United

States, 218 F.3d 1305, 1313 (11th Cir. 2000) (footnote omitted; quoting Burger v. Kemp, 483 U.S.

776, 794 (1987)). Counsel is not ineffective for failing to raise non-meritorious issues, see

Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001); nor is counsel required to present every

non-frivolous argument, see Dell v. United States, 710 F.3d 1267, 1282 (11th Cir. 2013).

Regarding the prejudice component, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. 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).

3. Analysis of McCormack’s Claims

As noted above, McCormack raises three claims of trial court error and six claims of

ineffective assistance of counsel.

Ground One

In Ground One, McCormack argues that the trial court erred in denying his motion for

mistrial due to the Prosecutor’s allegedly impermissible comment on McCormack’s right to remain

silent. ECF No. [13] at 11. The State agrees that this claim was exhausted when McCormack raised

it on direct appeal. ECF No. [15] at 7.

“A defendant in custody after receiving Miranda warnings indisputably has the right under

the Fifth Amendment to remain silent.” United States v. Wilchcombe, 838 F.3d 1179, 1190 (11th

Cir. 2016). Accordingly, the Fifth Amendment prohibits “comment by the prosecution on the

accused’s silence[.]” Griffin v. California, 380 U.S. 609, 615 (1965). To determine whether the

prosecution made an impermissible comment on a defendant’s right to remain silent, the Eleventh

Circuit directs courts to consider “whether the remark is ‘manifestly intended’ by the prosecutor

or ‘would naturally and necessarily be understood by the jury’ as a comment on the defendant’s

silence.” Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir. 1987) (quoting United States v.

Vera, 701 F.2d 1349 (11th Cir. 1983)). “The comment must be examined in context, in order to

evaluate the prosecutor’s motive and to discern the impact of the statement.” United States v.

Knowles, 66 F.3d 1146, 1163 (11th Cir. 1995).

“Because a trial judge is in the best position to evaluate both the tone and demeanor of the

prosecutor, and the prejudicial effect of a statement or evidence on the jury, it is within that judge’s

discretion to grant or deny a mistrial. United States v. Hernandez, 490 F. App’x 250, 253 (11th

Cir. 2012) (internal citations omitted). Accordingly, the mistrial determination must be made “in

the context of the entire trial and in light of any curative instruction.” United States v. Newsome,

475 F.3d 1221, 1227 (11th Cir. 2007). “When a district court gives a curative instruction, the

reviewing court will reverse only if the evidence is so highly prejudicial as to be incurable by the

trial court’s admonition.” Id. (quotation marks omitted).

McCormack takes issue with the Prosecutor’s comment during cross examination of

McCormack. ECF No. [13] at 11. The Prosecutor sought to impeach McCormack with statements

he had made at a bond hearing twenty days after the incident occurred. ECF No. [17-1] at 661.

Referring to that bond hearing, the Prosecutor asked:

Q: That was the first time you gave a statement to anybody about anything in this

case, correct?

A: Correct.

Q: 20 days after this happened.

Id. At this point, McCormack’s counsel objected that the Prosecutor had improperly commented

on McCormack’s right to remain silent and moved for a mistrial Id. at 661-62. After the Court

excused the jury, the Prosecutor explained that he was not commenting on McCormack’s decision

to remain silent during the 20 days following the incident, but rather was attempting to point out

that when McCormack “made his statement . . . he had all of the information that the police had.”

Id. at 664. McCormack was therefore “able to tailor a story” based on that information. Id.

The judge deferred ruling on the motion for mistrial and immediately gave the following

curative instruction:

Ladies and gentlemen of the jury, let me remind you of an instruction that I’ve

already given you previously, that in every criminal proceeding a defendant has the

absolute right to remain silent. At no time is it the duty of a defendant to prove his

innocence. From the exercise of a defendant’s right to remain silent, a jury is not

permitted to draw any inference of guilt.

Id. at 669. The trial court subsequently denied the motion for mistrial. Id. at 821.

The full context of the cross examination reveals that the “20 days after” statement by the

Prosecutor was not an impermissible comment on McCormack’s right to silence. At the start of

the cross examination, the Prosecutor pointed out that McCormack was the only testifying witness

in the case who had the benefit of listening to other witnesses’ testimony. ECF No. [17-1] at 659.

“That makes [McCormack] the only person in the world that would be able to tailor [his] testimony

to fit” prior testimony. Id. at 660. Later, after the Court issued the curative instruction set forth

above, the Prosecutor resumed his line of questioning, emphasizing that, when McCormack

testified at the bond hearing, he “knew all the information that the police had in this investigation,”

including what Samantha had said. Id. at 669-70.

The Prosecutor’s questions – both before and after the alleged impermissible statement –

support the Prosecutor’s explanation as to why he commented on the fact that McCormack did not

provide a statement in this case until 20 days after the incident occurred. ECF No. [17-1] at 664.

The Prosecutor was attempting to show that, at the time of McCormack’s statement, McCormack

had sufficient information from the State to “tailor a story” to fit that evidence. Id. The purpose of

the Prosecutor’s comment was to cast doubt on McCormack’s testimony at the bond hearing and

at trial. It was not “manifestly intended” to be a comment on McCormack’s silence, nor would it

be “naturally and necessarily be understood by the jury” as such. Matire, 811 F.2d at 1435

(quotation marks omitted).

Moreover, to the extent that the Prosecutors’ comment created any doubt or confusion

regarding McCormack’s right to silence, the trial court immediately issued an accurate curative

instruction. The minor remark in this case was certainly not “so highly prejudicial as to be

incurable by the trial court’s admonition.” Newsome, 475 F.3d at 1227 (quotation marks omitted);

see also Al-Amin v. Warden Ga. Dep’t of Corrs., 932 F.3d 1291, 1300 (11th Cir. 2019) (finding

no prejudice despite “substantial” constitutional error and a curative instruction that was “largely

ineffective”).

Accordingly, Ground One is denied on the merits.

Grounds Two and Three

In Ground Two, McCormack claims that the trial court abused its discretion and violated

double jeopardy by imposing consecutive sentences for McCormack’s convictions of aggravated

assault and kidnapping. ECF No. [13] at 13. In the related Ground Three, McCormack argues the

convictions themselves are “barred by double jeopardy protections under the Fifth Amendment[.]”

Id. at 15. The State agrees that both of those related claims were raised in some form on direct

appeal.1 ECF No. [15] at 7-8.

The Double Jeopardy Clause “protects against multiple punishments for the same offense.”

Brown v. Ohio, 432 U.S. 161, 165 (1977) (quotation marks omitted). When a defendant’s single

act violates two separate statutes, consecutive sentences are permissible “if each statute requires

proof of an additional fact which the other does not[.]” Blockburger v. United States, 284 U.S.

299, 304 (1932). Under Florida law, “kidnapping and aggravated assault are separate offenses,

each requiring proof of an element that the other does not.” Wilkins v. State, 543 So. 2d 800, 801

1 In light of the Court’s conclusion that those claims are clearly without merit, the Court declines to address

the State’s additional argument that Ground Two is also procedurally defaulted. See Lambrix v. Singletary,

520 U.S. 518, 525 (1997) (recognizing a district court’s authority to pass over a procedural-bar issue and

deny a habeas claim on the merits when doing so is in the interest of judicial economy).

(Fla. 5th DCA 1989). Accordingly, even if McCormack’s kidnapping and aggravated assault

convictions were the result of the same act, the Double Jeopardy Clause would permit consecutive

sentences. See Harris v. Sec’y, Dep’t of Corrs., No. 18-cv-1075, 2020 WL 5876943, at *5 (M.D.

Fla. Oct. 2, 2020) (finding no Double Jeopardy violation for sentences for kidnapping and

aggravated assault).

In actuality, however, the trial court determined that McCormack’s convictions stem from

separate acts. ECF No. [17-3] at 11. The trial court reasoned that the aggravated assault occurred

in the bedroom when McCormack threatened to kill Samantha and the gun was discharged, and

the kidnapping occurred after, when McCormack forced her into the car. Id. That determination

was a reasonable interpretation of the evidence presented in this case and it is entitled to deference

by this Court. See Wilson, 138 S. Ct. at 1192.

Finally, although the trial court initially believed that it was required to give McCormack

consecutive sentences, see ECF No. [17-3] at 3, the trial court subsequently held a resentencing

hearing. There, the sentencing judge definitively stated that he was excising his discretion to

impose consecutive terms. Id. at 11. McCormack has not shown that federal law prohibited the

trial court from ordering those consecutive sentences.

Accordingly, Grounds Two and Three are denied.

Ground Four

In his fourth claim, McCormack asserts that his trial counsel was ineffective for “failing to

strike an admittedly biased juror.” ECF No. [13] at 17. The State agrees this issue was exhausted

in state court because it was raised within McCormack’s motion for post-conviction relief and

appeal to the Fourth DCA. ECF No. [15] at 8-9.

During jury selection, McCormack’s counsel asked whether jurors would give a police

officer’s testimony “a little more weight than a regular person.” ECF No. [17-1] at 202. Venire

member Humphreys stated that her father was in the military, she was taught that certain people

“choose to protect and serve,” and she tends to “put more weight behind what they are saying[.]”

Id. McCormack’s counsel reiterated his question as to whether Humphreys would give an officer’s

testimony “more weight than an average lay witness,” to which Humphreys answered, “Right.” Id.

McCormack’s counsel then asked if Humphreys could follow the judge’s instruction “that

every individual’s testimony should carry the same weight” if the jurors believe them. Id. at 203.

Humphreys answered, “I think I could be impartial if I needed to be.” Id. McCormack’s counsel

did not move to strike her for cause, and she was selected to be on the jury. Id. at 240.

Petitioner argues that Humphreys’ statements evinced her “actual bias” in favor of law

enforcement, and that such bias was incapable of being rehabilitated. ECF No. [13] at 17. Counsel

was therefore ineffective for failing to strike her. Id.

Effective assistance of counsel is required during jury selection. Brown v. Jones, 255 F.3d

1273, 1278-79 (11th Cir. 20021). “Because empaneled jurors are presumed impartial,

[McCormack] must show that the juror selection process produced a juror that was actually biased

against him to satisfy Strickland’s prejudice prong.” Rockett v. Sec’y, Dep’t of Corrs., 2014 WL

3809146, at *15 (M.D. Fla. Aug. 1, 2014). There is a “strong presumption” that trial counsel’s jury

selection decisions “were the result of sound trial strategy.” Brown v. Jones, 255 F.3d 1273, 1279

(11th Cir. 2001).

McCormack has not shown that Humphreys was actually biased against him. Though

Humphreys initially expressed an inclination to favor a law officer’s testimony, she averred that

she was capable of following the judge’s instructions regarding impartiality. ECF No. [17-1] at

203. “Jurors are presumed to follow the trial court’s instructions.” Miller v. United States, 562 F.

App’x 838, 845 (11th Cir. 2014). McCormack has not met his burden to show that Humphreys

was unwilling or unable to do so, nor has he shown that his counsel’s decision to accept her as a

juror was anything other than “sound trial strategy.” Brown, 255 F.3d at 1279.

Moreover, the testimony of law enforcement officers played a relatively small role in this

case. Virtually all relevant evidence came from the testimony of Samantha, Tiffany, and

McCormack – who happened to have been a law enforcement officer in Jamaica, prior to moving

to the United States. ECF No. [17-1] at 343. Thus, even if McCormack had shown that Humphreys

was biased in favor of police officers – which he has not – his ineffective assistance claim “would

still fail because he cannot establish that failing to strike [her] prejudiced the outcome of his trial.”

Miller, 562 F. App’x at 845.

Ground four is denied.

Ground Five

In his fifth claim, McCormack asserts that his trial counsel was ineffective for failing to

investigate exculpatory evidence and call favorable witnesses. ECF No. [13] at 19. The State

agrees this issue was preserved within McCormack’s motion for post-conviction relief and

subsequent appeal to the Fourth DCA. ECF No. [15] at 9.

McCormack asserts that his counsel should have called three witnesses: the friend whose

house McCormack and Samantha visited during the kidnapping; the police officer who spoke with

McCormack and Samantha that night; and the neighbor Samantha and Tiffany visited in the

morning after the incident. ECF No. [13] at 20. McCormack characterizes those individuals as

“material exculpatory witnesses,” but he does not explain what testimony they would have given.

Id. at 19.

“[C]omplaints of uncalled witnesses are not favored, because the presentation of

testimonial evidence is a matter of trial strategy and because allegations of what a witness would

have testified are largely speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.

1978);2 see also Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (recognizing that vague,

conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim

and do not warrant an evidentiary hearing). “Which witnesses, if any, to call, and when to call

them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second

guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). Therefore, “[w]here a claim of

ineffective assistance is based on counsel's failure to call a witness, the burden to show prejudice

is heavy because often allegations of what a witness would have testified to are largely

speculative.” Walker v. Sec’y, Fla. Dep’t of Corrs., 495 F. App’x 13, 17 (11th Cir. 2012).

As noted above, McCormack has not specified what material testimony the friend, the

police officer, or the neighbor would have given. There is no indication that any of those three

individuals had relevant information as to the key facts of this case regarding what occurred in the

guest bedroom, who threatened whom with a gun, and whether Samantha went willingly into

McCormack’s car. McCormack’s unsupported assertion that those individuals would have

supported his version of the events is merely a “conclusory allegation[ ] unsupported by specifics”

that does not amount to a valid claim of ineffective assistance of counsel. Tejada, 941 F.2d at 1559

(quotation marks omitted).

Ground Five is denied.

Ground Six

In his sixth claim, McCormack alleges trial counsel ineffectiveness for failing to retain and

call a gunshot residue expert. ECF No. [13] at 21. The State agrees this issue was exhausted in

state court because it was raised within McCormack’s motion for post-conviction relief and appeal

2 The Eleventh Circuit has adopted, as binding precedent, all decisions of the former Fifth Circuit handed

down prior to close of business on September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209

(11th Cir. 1981) (en banc).

to the Fourth DCA. ECF No. [15] at 9.

As noted above, the State called a crime scene technician who testified that she conducted

“gunshot residue testing” on Samantha’s hand. ECF No. [17-1] at 561-62. She testified that the

presumptive test was negative, indicating that Samantha did not fire the gun. Id. at 562. She did

not conduct a test on McCormack because he was not present. Id. at 572. On cross examination,

McCormack’s counsel elicited the facts that the test conducted was merely a “presumptive” field

test; a more accurate lab test was not conducted. Id. at 575.

McCormack asserts that a gunshot residue expert called by defense would have “rebutted

the conclusions reached by the State’s expert.” ECF No. [13] at 21. His counsel’s failure to call

such an expert “left the jury with no other option but to accept the State’s expert’s conclusion that

[Samantha] had not fired the gun, and by extension, drew an inference that [McCormack] was in

fact the one who caused the gun to fire.” Id.

As noted in the Court’s discussion of Ground Five, McCormack has a “heavy” burden to

show prejudice stemming from his counsel’s decision not to call a witness “because often

allegations of what a witness would have testified to are largely speculative.” Walker, 495 F. App’x

17. McCormack has not specified what aspect of the State’s witness’s testimony would have been

rebutted by defense’s gunshot residue expert. Instead of calling such an expert, McCormack’s

counsel opted for the strategy of emphasizing that the field test conducted by the State’s witness

is less reliable than a lab test. ECF No. [17-1] at 575. McCormack has not rebutted the presumption

that his counsel’s strategy was reasonable; his “conclusory allegation[ ] unsupported by specifics”

is insufficient to show deficient performance or prejudice. Tejada, 941 F.2d at 1559 (quotation

marks omitted).

Accordingly, Ground Six is denied.

Ground Seven

In his seventh claim, McCormack alleges trial counsel ineffectiveness for failing to clarify

McCormack’s testimony during cross-examination regarding a prior inconsistent statement he

made about the firearm used in this case. ECF No. [13] at 23. The State agrees this issue was

exhausted in state court because it was raised within McCormack’s motion for post-conviction

relief and appeal to the Fourth DCA. ECF No. [15] at 9-10.

Throughout McCormack’s testimony at trial, he asserted that the gun he claims Samantha

pointed at him was a semiautomatic pistol, as opposed to a revolver. ECF No. [17-1] at 635, 657.

On cross examination, the State impeached McCormack with his testimony from a pretrial hearing,

in which he stated that the weapon was a revolver. Id. at 679. McCormack claims that his trial

counsel failed to rehabilitate him on rebuttal. ECF No. [13] at 23. He argues that his counsel should

have elicited that, after McCormack stated it was a revolver at the pretrial hearing, he “immediately

corrected himself[.]” Id.

The trial transcript reveals that counsel’s performance was not deficient. As an initial

matter, during direct examination of McCormack, his counsel tried to address the

semiautomatic/revolver inconsistency. ECF No. [17-1] at 657-58. He asked McCormack if he ever

“use[s] those two words interchangeably[.]” Id. Although McCormack’s answer was not helpful,

Id. at 658 (“I’m not sure if I’m following you.”), counsel’s questioning reveals that he attempted

to get ahead of an impeachment issue he reasonably and accurately anticipated. Later, in closing

argument, McCormack’s counsel defended McCormack’s credibility, arguing that “the worst” the

State proved was that McCormack “said revolver instead of automatic.” Id. at 782. This was a

reasonable strategy to downplay the importance of McCormack’s inconsistent statements.

Moreover, as the State points out, McCormack did not “immediately” correct his testimony

at the pretrial hearing regarding his description of the gun as a revolver. ECF No. [17-4] at 9. In

that hearing, he stated the firearm was a revolver during direct examination, and then stated that it

was a pistol during cross examination. Id. at 16-17. It is speculative whether pointing out

McCormack’s supposed correction on cross examination would have been the better strategy.

In sum, the Court concludes that McCormack’s counsel made tactical decisions as to how

to address the State’s impeachment of McCormack. Those decisions were reasonable and well

within “the wide latitude counsel must have in making tactical decisions.” Cullen v. Pinholster,

563 U.S. 170, 195 (2011) (quotation marks omitted). As such, McCormack has failed to show that

his counsel’s performance was deficient under Strickland. Ground Seven is denied.

Ground Eight

In his eighth claim, McCormack asserts that his trial counsel was ineffective for failing to

object to a Giglio violation. ECF No. [13] at 125. The State agrees this issue was exhausted in state

court because it was raised within McCormack’s motion for post-conviction relief and appeal to

the Fourth DCA. ECF No. [15] at 10.

According to McCormack, the Giglio violation occurred during the testimony of the Crime

Scene Technician (“CST”), who testified that the result of the gunshot residue test on Samantha’s

hands was negative. ECF No. [13] at 25. McCormack asserts that the CST’s testimony was false,

as evidenced by a deposition of Samantha in which she stated that the CST had told her the result

of the gunshot residue test was positive. Id.

Giglio prohibits the Government from knowingly presenting perjured testimony. Davis v.

Terry, 465 F.3d 1249, 1253 (11th Cir. 2006) (quotation marks omitted) (citing Giglio v. United

States, 405 U.S. 150 (1972)). “To obtain a reversal on the grounds that the government relied on

perjured testimony, the following must be shown: (1) the contested statements were actually false,

(2) the statements were material, and (3) the prosecution knew that they were false.” United States

v. Bailey, 123 F.3d 1381, 1398 (11th Cir. 1997) (quotation marks omitted).

Here, it is true that Samantha stated in a deposition that the CST told her that the result of

the gunshot residue test was positive. ECF No. [17-6] at 5. She stated that the CST told her that

her hands “tested positive for residue, but . . . not enough to say [Samantha] was the one with the

gun[.]” Id.

However, the CST’s testimony at trial was entirely consistent with the CST’s deposition,

wherein she testified that the result of the gunshot residue test was negative. ECF No. [17-5] at 18.

McCormack’s counsel indisputably had the deposition testimony of both Samantha and the CST.

Moreover, during trial, the Government averred that it had produced during discovery a

photograph of the negative presumptive test result. ECF No. [17-1] at 564. The trial court found

that no discovery violations had occurred and McCormack “was on notice of the presumptive

gunshot residue test as early as September of 2013.” Id. at 567.

This record does not reveal that the CST committed perjury. Although the CST’s testimony

differed from Samantha’s deposition testimony, such contradictory testimony “does not amount to

a showing that the government knowingly presented false testimony.” United States v. Michael,

17 F.3d 1383, 1385 (11th Cir. 1994). The Eleventh Circuit instructs not to “impute knowledge of

falsity to the prosecutor where a key government witness’ testimony is in conflict with another’s

statement or testimony.” Id. Accordingly, McCormack’s Giglio claim fails because he has not

demonstrated that the CST’s testimony was false.

Because the underlying Giglio claim is without merit, McCormack’s counsel did not

perform deficiently in failing to raise it. See Denson v. United States, 804 F.3d 1339, 1342 (11th

Cir. 2015) (“Failing to make a meritless objection does not constitute deficient performance.”).

Ground Eight is denied.

Ground Nine

In his final claim, McCormack asserts that he was denied ineffective assistance of counsel

for failing to object “to multiple incidents of prosecutorial misconduct during closing arguments.”

ECF No. [13] at 27. The State agrees this issue was exhausted in state court because it was raised

within McCormack’s motion for post-conviction relief and appeal to the Fourth DCA. ECF No.

[15] at 10.

McCormack asserts that the Prosecutor made four types of impermissible comments during

closing. ECF No. [13] at 27. First, McCormack argues that the Prosecutor impermissibly bolstered

the State’s witnesses with the following comments: “a reasonable person with common sense”

would conclude that Tiffany and Samantha were telling the truth; “listen to these women shaking,

crying who obviously did not concoct a story”; “take what they said as truth”; “[Samantha] is not

lying. If [Samantha and Tiffany] are lying, they are the worst liars I’ve ever seen.” Id. Second,

McCormack argues that the Prosecutor impermissibly inserted his personal opinion by stating,

“Mr. McCormack is guilty. That’s it.” Id. Third, McCormack argues that the Prosecutor denigrated

the defense’s version of the events as “ridiculous,” “concocted,” and created “out of thin air.” Id.

Lastly, McCormack argues that the Prosecutor misrepresented the evidence by stating that

Samantha called the police, when in fact Tiffany made the call. Id.

Under Florida law, “[w]ide latitude is permitted in arguing to a jury.” Breedlove v. State,

413 So. 2d 1, 8 (Fla. 1982). Prosecutors’ closing arguments are not limited to “flat, robotic

recitations of ‘just the facts.” Diaz v. State, 797 So. 2d 1286, 1287 (Fla. 4th DCA 2001). Rather, it

“is a time for robust, vigorous, challenging . . . of an opponent’s ideas.” Id. (quotation marks

omitted).

Having reviewed the specific comments quoted by McCormack and the Prosecutor’s

closing argument in full, the Court does not find that the Prosecutor’s comments clearly exceeded

the bounds permitted by Florida law. Particularly under the “doubly differential” standard of

review created by Strickland and AEDPA, the Court does not find deficient performance by

McCormack’s counsel in declining to object to the statements. Gissendaner, 735 F.3d at 1323.

Moreover, McCormack is unable to show prejudice since the jury was properly instructed by the

trial court that attorneys’ argument is not evidence. ECF No. [17-1] at 751; see Miller, 562 F.

App’x at 845 (“Jurors are presumed to follow the trial court’s instructions.”). Ground Nine is

denied under both prongs of Strickland.

4. Evidentiary Hearing

In a habeas corpus proceeding, the burden rests on the petitioner to establish the need for

an evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir.

2011). “[I]f 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 v. Landrigan, 550

U.S. 465, 474 (2007); see also Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318-19 (11th

Cir. 2016). Here, the issues presented have been resolved based on the record before the Court.

Because the Court can “adequately assess [McCormack’s] claim[s] without further factual

development[,]” McCormack is not entitled to an evidentiary hearing. Turner v. Crosby, 339 F.3d

1247, 1275 (11th Cir. 2003).

5. Certificate of Appealability

A prisoner seeking to appeal a district court’s final order denying his or her petition for

writ of habeas corpus has no absolute entitlement to appeal; rather, in order to do so, he must obtain

a certificate of appealability. See 28 U.S.C. § 2253(c)(1); see also Harbison v. Bell, 556 U.S. 180,

183 (2009). This Court should issue a certificate of appealability only if McCormack makes “a

substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). Where the

district court rejects 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 v. McDaniel, 529 U.S. 473, 484 (2000). Where the district

Case No. 21-cv-60555-BLOOM

court rejects a petitioner’s claims on procedural grounds, the petitioner must additionally show

that “jurists of reason” would find the district court’s procedural ruling “debatable.” Jd.

For the reasons stated above, the Court grants a certificate of appealability as to the issue

of whether McCormack’s Petition was timely. The Court denies a certificate of appealability as to

all Grounds raised within his Petition.

IV. CONCLUSION

For the foregoing reasons, the Court has reconsidered its prior ruling and again concluded

that McCormack’s Petition is untimely. In an abundance of caution, however, the Court has

analyzed the merits of McCormack’s claims and found them to be without merit. Accordingly, it

is ORDERED AND ADJUDGED as follows:

1. McCormack’s Motion to Reconsider, Alter, or Amend Judgment, ECF No. [20], is

GRANTED.

2. The Court’s Order of Dismissal, ECF No. [19], is VACATED.

3. McCormack’s Petition, ECF No. [13] at 7-31, is DENIED.

4. Acertificate of appealability is GRANTED as to the issue of timeliness only.

5. To the extent not otherwise disposed of, any pending motions are DENIED AS MOOT

and all deadlines are TERMINATED.

6. The Clerk of Court is directed to CLOSE this case.

DONE AND ORDERED in Chambers at Miami, Florida, on October 26, 2022.

UNITED STATES DISTRICT JUDGE

27

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Orland McCormack, Pro Se

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Madison Correctional Institution

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Madison, FL 32340

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Email: CrimAppWPB@MyFloridaLegal.com