Forbes v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-60009-CIV-ALTMAN

DENALDO FORBES,

Petitioner,

v.

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________/

ORDER

The Petitioner, Denaldo Forbes, is serving a thirty-year sentence in the custody of the Florida

Department of Corrections for burglarizing a dwelling. He’s now filed a habeas petition under 28

U.S.C. § 2254, challenging his state-court conviction and sentence. See Second Amended Petition [ECF

No. 37]. After careful review—and for the reasons outlined below—we now DISMISS Ground Two

of his Second Amended Petition as procedurally defaulted and DENY the remaining claims on their

merits.

THE FACTS

On April 27, 2012, the State of Florida charged Forbes and a codefendant, Jermaine West, by

Information with three crimes: burglary of a dwelling (Count 1), grand theft (Count 2), and possession

of burglary tools (Count 3). See Information [ECF No. 20-1] at 18–19. At trial, the State alleged that

Forbes had directed West to enter the victim’s home and steal “jewelry, watches, and miscellaneous

property” worth $5,000.00 (or less). Id. at 18. Having heard the evidence, the jury found Forbes guilty

on all three counts. See Verdict [ECF No. 20-1] at 85–87. That same day (August 20, 2014), the trial

court sentenced Forbes to thirty years in prison (with a fifteen-year mandatory minimum) on Count

1 and 65.85 months on Counts 2 and 3—all to run concurrently. See Judgment and Sentencing Orders

[ECF No. 20-1] at 89–101.

Forbes appealed his conviction and sentence to the Fourth DCA. See Direct Appeal Notice of

Appeal [ECF No. 20-1] at 108. In that appeal, he advanced four arguments: (1) that “[t]he trial court

erred by overruling [Forbes’s] hearsay objections to out-of-court statements that a resident had seen

a suspicious vehicle with three black males drive by”; (2) that the trial court erred by allowing the State

to play a recording without “lay[ing] a proper predicate authenticating the recording”; (3) that the trial

court erred by denying Forbes’s motion for a judgment of acquittal, “where the evidence merely

created a suspicion that Appellant was a principal to the crimes committed by Jermaine West and was

insufficient to sustain Appellant’s convictions”; and (4) that Forbes’s sentence violated the rule set out

in Alleyne v. United States, 570 U.S. 99 (2013), because “facts increasing the maximum penalty were not

submitted to the jury nor proven beyond a reasonable doubt.” Direct Appeal Initial Brief [ECF No.

20-1] at 125. On July 14, 2016, the Fourth DCA summarily affirmed the trial court in an unwritten

opinion. See Forbes v. State, 197 So. 3d 53, 53 (Fla. 4th DCA 2016).

On December 26, 2016,1 Forbes—now proceeding pro se—filed a state habeas petition directly

with the Fourth DCA, alleging that his appellate counsel had been ineffective in the following six

ways: (1) “counsel failed to raise on appeal that the trial court’s burglary instruction to the jury was

misleading and confusing,” State Habeas Petition [ECF No. 20-1] at 258; (2) counsel “failed to raise

or argue on appeal that the trial court had committed reversible error when instructing the jury on

principal,” id. at 261; (3) counsel failed to argue that “the evidence presented during the trial was

insufficient to support the [charge] of burglary of a dwelling,” id. at 262–63; (4) counsel failed to

1 “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.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.

2009). “Absent evidence to the contrary, [courts] assume that a prisoner delivered a filing to prison

authorities on the date that he signed it.” Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014).

contend on appeal “that the trial court committed reversible error when constructively amending the

charging information,” id. at 265; (5) “counsel failed to present the issue or argument that trial counsel

was ineffective for failure to adequately object to or otherwise adequately challenge hearsay testimony

offered by a state’s witnesses,” id. at 266; and (6) counsel failed “to move to strike the state’s answer

brief that referenced materials that was [sic] not brought out to the jury during trial,” id. at 270. On

February 24, 2017, the Fourth DCA denied Forbes’s habeas petition in a one-sentence order. See

Order Denying State Habeas Petition [ECF No. 20-2] at 37 (“ORDERED that the January 9, 2017

petition alleging ineffective assistance of appellate counsel is denied on the merits.”).

Forbes then filed a FLA. R. CRIM. P. 3.850 motion for postconviction relief in state circuit

court. See Postconviction Motion [ECF No. 20-2] at 39–65. The Postconviction Motion raised seven

additional grounds for relief: (1) that trial counsel “failed to file a motion to suppress or otherwise

challenge [the] State’s evidence illegally obtained [sic], which was subsequent to an unlawful search of

the Defendant’s and alleged co-defendant’s cell phone,” id. at 43; (2) that trial counsel was ineffective

for failing to object to “the trial court’s burglary instruction on the basis of being misleading and

confusing,” id. at 49; (3) that trial counsel was ineffective for failing to “challenge the trial court’s

principal instruction on the basis of being misleading and confusing,” id. at 51; (4) that trial counsel

“failed to make an adequate argument for judgment for acquittal [regarding] the charge of burglary of

a dwelling,” id. at 53; (5) that trial “counsel failed to object or otherwise challenge the trial court’s

constructive amendment to the charging information,” id. at 56; (6) that trial counsel failed to object

to “hearsay testimony offered by [law enforcement] witnesses,” id. at 57; and (7) that “the numerous

errors described above . . . yielded a formidable cumulative and synergistic effect resulting in a trial

that was unfair when the errors are considered in the aggregate,” id. at 63.

The State filed a Response to Forbes’s Postconviction Motion, arguing that “the Defendant’s

claims are without legal merit . . . and should be thus summarily denied.” State’s Postconviction

Response [ECF No. 20-2] at 82. On April 25, 2018, the state postconviction court denied all seven of

Forbes’s claims in a written order. See Order Denying Postconviction Motion [ECF No. 20-3] at 97–

101.

Forbes appealed the denial of his Postconviction Motion to the Fourth DCA, contending that

the state postconviction court erred in “summarily denying” his postconviction claims without

“provid[ing] a valid legal rationale” or holding an evidentiary hearing. Postconviction Initial Brief

[ECF No. 20-3] at 188–89; see also Postconviction Notice of Appeal [ECF No. 20-3] at 114. On

February 28, 2019, the Fourth DCA affirmed the state postconviction court’s order in an unwritten

opinion. See Forbes v. State, 272 So. 3d 1275, 1275 (Fla. 4th DCA 2019). The Fourth DCA subsequently

denied Forbes’s motion for rehearing, see Order Denying Motion for Rehearing [ECF No. 20-3] at

238, and issued its mandate on July 12, 2019, see Postconviction Mandate [ECF No. 20-3] at 240.

Forbes filed his original § 2254 petition on January 2, 2020. See Petition [ECF No. 1].

Magistrate Judge Lisette M. Reid gave Forbes permission to file an Amended Petition on March 2,

2020. See Amended Petition [ECF No. 15]. Forbes then asked for leave to file a Second Amended

Petition that would “reduce the number of grounds from 14 to 4,” see Motion for Leave to Amend

[ECF No. 36] at 3, which we allowed him to do over the Respondent’s objections, see Order Granting

Motion for Leave to Amend [ECF No. 44]. Forbes submitted his now-operative Second Amended

Petition, along with an accompanying memorandum of law, on May 11, 2021. See Second Amended

Petition [ECF No. 37]; Memorandum of Law [ECF No. 40].

THE LAW

I. The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

AEDPA instructs district courts to deny any claim that was “adjudicated on the merits” in a

state-court proceeding unless that adjudication “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the Supreme Court

of the United States, or resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S.

86, 97–98 (2011) (summarizing 28 U.S.C. § 2254(d)–(e)). To have “adjudicated [the claim] on the

merits,” the state court need not have issued any kind of formal opinion or even outlined its reasoning.

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.”). Rather, when a state court doesn’t

articulate its reasons for the denial, the federal court must “‘look through’ the unexplained decision to

the last related state-court decision that does provide a rationale” and “then presume that the

unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

“Clearly established Federal law” means “the holdings, as opposed to the dicta, of [the United States

Supreme Court’s] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529

U.S. 362, 412 (2000). To be “contrary to clearly established federal law, the state court must either (1)

apply a rule that contradicts the governing law set forth by Supreme Court case law, or (2) reach a

different result from the Supreme Court when faced with materially indistinguishable facts.” Ward v.

Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (cleaned up).

For “a state court’s application of [Supreme Court] precedent” to be “‘unreasonable, the state

court’s decision must have been more than incorrect or erroneous. The state court’s application must

have been objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (cleaned up). “[I]t

is not an unreasonable application of clearly established Federal law for a state court to decline to

apply a specific legal rule that has not been squarely established by [the Supreme] Court.” Richter, 562

U.S. at 101. “And an unreasonable application of those holdings must be objectively unreasonable,

not merely wrong; even clear error will not suffice. To satisfy this high bar, a habeas petitioner is

required to show that the state court’s ruling on the claim being presented in federal court was so

lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Woods v. Donald, 575 U.S. 312, 316 (2015)

(cleaned up).

Section 2254(d) similarly prohibits federal judges from reevaluating a state court’s factual

findings unless those findings were “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). To establish that a state

court’s factual findings were unreasonable, “the petitioner must rebut ‘the presumption of correctness

[of a state court’s factual findings] by clear and convincing evidence.’” Ward, 592 F.3d at 1155–56

(quoting 28 U.S.C. § 2254(e)(1)).

“AEDPA’s standard is intentionally difficult to meet.” Woods, 575 U.S. at 315 (cleaned up).

When reviewing state criminal convictions on collateral review, “federal judges are required to afford

state courts due respect by overturning their decisions only when there could be no reasonable dispute

that they were wrong. Federal habeas review thus exists as a guard against extreme malfunctions in

the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. at

316 (cleaned up).

Even if a petitioner meets AEDPA’s “difficult” standard, he must still show that any

constitutional error had a “substantial and injurious effect or influence” on the verdict. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993). The Brecht harmless-error standard requires habeas petitioners

to prove that they suffered “actual prejudice.” Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1307

(11th Cir. 2012). As the Supreme Court recently explained, while the passage of AEDPA “announced

certain new conditions to [habeas] relief,” it didn’t eliminate Brecht’s actual-prejudice requirement.

Brown v. Davenport, 142 S. Ct. 1510, 1524 (2022). In other words, a habeas petitioner must satisfy Brecht,

even if AEDPA applies. See id. at 1526 (“[O]ur equitable precedents remain applicable ‘whether or

not’ AEDPA applies.” (citing Fry v. Pliler, 551 U.S. 112, 121 (2007)). In short, 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.” Id. at 1524 (emphasis in original); see also

Mansfield, 679 F.3d at 1307 (“[A] habeas petition cannot be successful unless it satisfies both [AEDPA]

and Brecht.”).

II. AEDPA’s Procedural Requirements

“[A] person in custody pursuant to the judgment of a State court” has one year to file a habeas

petition in federal court. 28 U.S.C. § 2244(d)(1). That one-year period “runs from the latest of” the

following dates:

(A) the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created

by State action in violation of the Constitution or laws of the United

States is removed, if the applicant was prevented from filing by such

State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable to

cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. § 2244(d)(1)(A)–(D). This limitations defense is, of course, waivable. See Paez v. Sec’y, Fla.

Dep’t of Corr., 947 F.3d 649, 655 (11th Cir. 2020) (explaining that the State may express its intent to

“waive the limitations bar”).

Beyond meeting this one-year window, though, federal habeas petitioners must also exhaust

their claims by “properly present[ing] [them] to the state courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 848

(1999) (emphasis in original). Specifically, federal habeas petitioners must “fairly present every issue

raised in [their] federal petition to the state’s highest court, either on direct appeal or on collateral

review.” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (cleaned up). “If a petitioner fail[ed] to

‘properly’ present his claim to the state court—by exhausting his claim[ ] and complying with the

applicable state procedure—prior to bringing his federal habeas claim, then [§ 2254] typically bars

[courts] from reviewing the claim.” Ibid. 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, 526 U.S. at 848.

All that said, “[s]tates can waive procedural bar defenses in federal habeas proceedings,

including exhaustion.” Vazquez v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 964, 966 (11th Cir. 2016) (cleaned

up)). But “[a] State shall not be deemed to have waived the exhaustion requirement . . . unless the

State, through counsel, expressly waives the requirement.” 28 U.S.C. § 2254(b)(3) (emphasis added); see

also McNair v. Campbell, 416 F.3d 1291, 1304 (11th Cir. 2005) (same).

III. Ineffective Assistance of Counsel

The Sixth Amendment affords a criminal defendant the right to “the Assistance of Counsel

for his defen[s]e.” 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 alleged errors made by both trial counsel and appellate counsel. See Farina v. Sec’y, Fla. Dep’t

of Corr., 536 F. App’x 966, 979 (11th Cir. 2013) (“A claim of ineffective assistance of appellate counsel

is evaluated under the same standard as for trial counsel.”).

To establish the first prong (deficiency), “a petitioner must [show] that no competent counsel

would have taken the action that his counsel did take[.]” Chandler v. United States, 218 F.3d 1305, 1315

(11th Cir. 2000) (en banc) (emphasis added). So, if “some reasonable lawyer at the trial could have

acted, in the circumstances, as defense counsel acted at trial[,]” counsel could not have performed

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 (prejudice), “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. To succeed on this prong, a defendant must

show that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id. at 687.

ANALYSIS

Forbes asserts four grounds for relief. In Ground One, Forbes argues that appellate counsel

“rendered ineffective assistance when counsel failed to move to strike [the] State’s Answer Brief on

the basis that the State referenced statements that [were] not brought out to the jury during the trial.”

Second Amended Petition at 4. In Ground Two, he claims that his trial counsel “fail[ed] to object to

the improper introduction of video evidence,” which led counsel to misadvise Forbes about the

benefits of a curative instruction. Id. at 6–7. In Ground Three, he blames his lawyer for not objecting

to the trial court’s “misleading and confusing” burglary instruction. Id. at 9. Finally, in Ground Four,

he castigates his lawyer for “fail[ing] to motion the court to suppress or otherwise challenge the

evidence obtained from the cellular phones.” Id. at 12.

The Respondent, unsurprisingly, takes a different view. It says that Grounds Two and Four

“are unexhausted” and cannot be revived because “Petitioner cannot now return to state court to

exhaust these claims.” Response to Order to Show Cause (“Response”) [ECF No. 46] at 31.2 And it

insists that we can deny all four claims on the merits because Forbes “has not shown that the state

court’s decision was contrary to, or involved an unreasonable application of, clearly established Federal

law . . . or was based on an unreasonable determination of the facts[.]” Id. at 51. Since the Respondent

has not “waive[d] [its] procedural bar defenses,” Hills v. Washington, 441 F.3d 1374, 1376 (11th Cir.

2006), we’ll start by analyzing the extent to which Forbes has properly exhausted his claims. We’ll then

review any of the surviving claims on the merits.

I. Exhaustion

Under AEPDA, a § 2254 petition “shall not be granted unless it appears that the applicant has

exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). The Eleventh

Circuit has clarified that exhaustion “has two essential requirements”: (1) “a federal claim must be

fairly presented to the state courts”; and (2) the petitioner “must take his claim to the state’s highest

court, either on direct appeal or collateral review.” Johnson v. Florida, 32 F.4th 1092, 1096 (11th Cir.

2022) (cleaned up).

The Respondent pushes different exhaustion arguments for each of Forbes’s claims. As to

Ground Two, the Respondent says that “[Forbes] has never raised this claim in state court in any way,

shape, or form.” Response at 31. Forbes concedes this point. See Petition at 6 n.1. But, citing the

Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1 (2012), he insists that “there is cause and

prejudice to overcome the exhaustion requirement.” See Petition at 6 n.1. Here, we agree with the

Respondent (as we explain in some detail below). Ground Four, though, is another matter. This claim,

the Respondent maintains, “was not properly exhausted [in Forbes’s Postconviction Motion] since it

2 The Respondent does concede, on the other hand, that all claims in the Second Amended Petition

are timely. See Response at 30 (“Under 28 U.S.C. § 2244(d)(1) the time for filing Petitioner’s claims

does not appear to have expired.”). And we’ll accept that concession. See Day v. McDonough, 547 U.S.

198, 209–10 (2006) (“[A] district court is not required to doublecheck the State’s math [for timeliness

purposes].”).

was procedurally barred under state law[.]” Response at 31. On this one, we disagree with the

Respondent—for reasons we’ll outline in a moment. Before we do, though, we’ll briefly discuss

Grounds One and Three—which Forbes has plainly exhausted.

A. Grounds One and Three

The Respondent never suggests that Grounds One and Three are unexhausted. See generally

Response. “However, the State’s failure to raise exhaustion does not constitute a waiver under

AEDPA, which mandates that ‘[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.’” McNair, 416 F.3d at 1304 (quoting 28 U.S.C. § 2254(b)(3)). Still,

our independent review of these claims satisfies us that both have been properly exhausted.

Forbes raised the substance of Ground One—which challenges the effectiveness of his

appellate counsel—in the habeas petition he filed under FLA. R. APP. P. 9.141(c) with the Fourth DCA.

Compare State Habeas Petition [ECF No. 20-1] at 270 (“[A]ppellate counsel failed to move to strike

the state’s answer brief that referenced materials that was [sic] not brought out to the jury during

trial.”), with Second Amended Petition at 4 (“Appellate counsel rendered ineffective assistance when

counsel failed to move to strike State’s answer brief on the basis that the State referenced statements

that was [sic] not brought out to the jury during trial.”). And Ground Three appears to be virtually

identical to the claim Forbes advanced in “Omission Two” of his Postconviction Motion. Compare

Postconviction Motion at 49 (“Defendant submits that counsel failed to object to or otherwise

challenge the trial court’s burglary instruction on the basis of being misleading and confusing[.]”), with

Second Amended Petition at 9 (“Counsel failed to object to or otherwise challenge the trial court’s

burglary instruction on the basis of being misleading and confusing[.]”). When the Postconviction

Motion was denied, Forbes appealed that ruling to the Fourth DCA, see Forbes, 272 So. 3d at 1275,

where he raised the very same argument he now presses in Ground Three, see Postconviction Initial

Brief [ECF No. 20-3] at 200 (“[C]ounsel was ineffective in failing to object to the court’s burglary

instruction as it was misleading and confusing.”). Because “the state’s highest court” had “a full and

fair opportunity to resolve [these] federal constitutional claims,” O’Sullivan, 526 U.S. at 845, we’ll

consider the merits of Grounds One and Three.

B. Ground Four

Forbes has also exhausted Ground Four. In contending that Ground Four “was not properly

exhausted,” Response at 31, the Respondent acknowledges (as it must) that Forbes included what’s

now Ground Four in his Postconviction Motion, see Postconviction Motion [ECF No. 20-2] at 43

(“Counsel failed to file a motion to suppress or [otherwise] challenge evidence subject to an unlawful

search of a cell phone.”). Nevertheless, the Respondent asks us not to review Ground Four on the

merits because “it was procedurally barred under state law because Petitioner lacked standing to raise

the issue.” Response at 31. We disagree.

It’s true that a claim is defaulted if the state postconviction court “decline[s] to address the

claim based on an independent and adequate procedural ground under state law[.]” Kimbrough v. Sec’y,

Fla. Dep’t of Corr., 809 F. App’x 684, 689 (11th Cir. 2020). But this independent-and-adequate-state-

ground doctrine only applies when “a state court has declined to address those claims because the

prisoner had failed to meet a state procedural requirement.” Maples v. Thomas, 565 U.S. 266, 280 (2012)

(cleaned up & emphasis added). In its written order disposing of Ground Four’s state-court

antecedent, the state postconviction court found that “[t]he Defendant’s claim is pure speculation and

refuted by the record. Additionally, Defendant lacks standing to challenge the search of the

codefendants’ cell phones.” Order Denying Postconviction Motion [ECF No. 20-3] at 97–98. As these

two sentences make plain, the state postconviction court denied the claim—essentially a Fourth

Amendment claim about the data police recovered from his cellphone—on the merits. And, while the

state court did say that Forbes lacked “standing” to challenge the search of his coconspirators’ phones,

Fourth Amendment standing is a merits question—not a procedural or jurisdictional bar. See Presley v.

United States, 895 F.3d 1284, 1290 (11th Cir. 2018) (“And unlike Article III standing, standing under

the Fourth Amendment is not jurisdictional; instead, we analyze it as a merits issue.”). Because the

state postconviction court denied Ground Four on the merits, the independent-and-adequate-state-

ground doctrine doesn’t bar Forbes from reraising that claim here.

C. Ground Two

The parties agree that Forbes has never raised Ground Two before. See Second Amended

Petition at 6 n.1; Response at 31. Forbes, though, asks us to excuse this procedural default because

(he says) he’s satisfied the “cause and prejudice” exception the Supreme Court carved out in Martinez.

See Second Amended Petition at 6 n.1. The Respondent disagrees and argues that Martinez doesn’t

apply because Forbes was not “truly obstructed or impeded in raising his claim of ineffectiveness of

trial counsel merely because he lacked postconviction counsel to help him file a postconviction

motion.” Response at 38–39.

A habeas petitioner can survive a procedural default if he can show either “cause and prejudice”

or “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.”). “Cause and prejudice” requires

the petitioner to establish that (1) “some objective factor external to the defense impeded the effort

to raise the claim properly in the state court,” and (2) “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). “Actual innocence,” on the other hand, requires the petitioner to make “a

credible showing” of new evidence that would make it “more likely than not that no reasonable juror

would have convicted the petitioner.” McQuiggin v. Perkins, 569 U.S. 383, 394–95 (2013) (cleaned up).3

The Martinez exception Forbes relies on implicates the doctrine of “cause and prejudice.” In

Martinez, the Supreme Court held that, “[w]here, under state law, claims of ineffective assistance of

trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar

a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-

review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566

U.S. at 17. Put another way, under Martinez, a habeas petitioner can show “cause” under the “cause

and prejudice” test when: “(1) a state requires a prisoner to raise ineffective-trial-counsel claims at an

initial-review collateral proceeding; (2) the prisoner failed to properly raise ineffective-trial-counsel

claims in his state initial-review collateral proceeding; (3) the prisoner did not have collateral counsel

or his counsel was ineffective; and (4) failing to excuse the prisoner’s procedural default would cause

the prisoner to lose a ‘substantial’ ineffective-trial-counsel claim.” Lambrix v. Sec’y, Fla. Dep’t of Corr.,

756 F.3d 1246, 1260 (11th Cir. 2014).

Florida law “requires that ineffective assistance claims generally be raised on collateral review,”

Sullivan v. Sec’y, Fla. Dep’t of Corr., 837 F.3d 1195, 1199 (11th Cir. 2016), and it’s undisputed that Forbes

didn’t have a lawyer at his postconviction proceedings in state court, see Memorandum of Law at 8;

Response at 39. For two reasons, though, the Respondent says that Martinez doesn’t apply here. First

(the Respondent says), although Forbes was unrepresented in his postconviction proceedings, he

3 We won’t address the “actual innocence” exception here. Forbes, after all, doesn’t allege that he’s

“actually innocent,” and he hasn’t offered any “reliable evidence not presented at trial such that it is

more likely than not that no reasonable juror would have convicted him of the underlying offense.”

Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d 1000, 1011 (11th Cir. 2012) (cleaned up). Because Forbes

has failed to argue that he’s “actually innocent,” he cannot use that exception to excuse his procedural

default. See, e.g., Renford v. Dixon, 2022 WL 2046849, at *6 (S.D. Fla. June 7, 2022) (Altman, J.)

(“Renford doesn’t argue that he’s actually innocent of the charges against him. Nor does he point to

any ‘new evidence’ that might support a contention that he is. That’s pretty much the end of that.”

(cleaned up)).

didn’t ask the postconviction court to appoint counsel for him, and he hasn’t shown (the Respondent

believes) that his ability to raise a meritorious postconviction claim was frustrated by his lack of

counsel. See Response at 40–41 (“[A] habeas petitioner should not be able to elect to represent himself

and then claim his lack of counsel is the cause of his failure to raise a claim in state court, especially

where the petitioner had no trouble raising multiple other claims.”). Second, the Respondent claims

that Ground Two “lacks merit and is thus not a substantial claim which requires the excusal of the

procedural bar.” Id. at 38. Because we agree that Ground Two doesn’t allege a “substantial ineffective-

trial-counsel claim,” Martinez doesn’t apply.4

Martinez’s “substantial claim” standard is identical to the “already-developed standard for

issuing a [certificate of appealability]”—i.e., the petitioner “must make a substantial showing . . . that

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

constitutional right.” Hittson v. GDCP Warden, 759 F.3d 1210, 1269–70 (11th Cir. 2014) (cleaned up).

A claim is not “substantial” under this standard “if it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief.” Id. at 1270 (cleaned up). Ground Two falls far

short of meeting this rigorous standard.

In Ground Two, recall, Forbes alleges that, during his trial, the State presented the video of a

police interview, in which Forbes implied that he’d been incarcerated before. See Second Amended

4 The Respondent’s first argument is intriguing, but we don’t think there’s enough legal support for

us to adopt it. It may well be that “Petitioner’s failure to exhaust Ground Two . . . is not due to the

fact that he lacked postconviction counsel, or due to the fact that he was not perfectly capable of

proceeding without counsel.” Response at 41. And it’s true that Forbes “does not explain why he

needed the aid of counsel to help him raise the issue.” Ibid. Still, Forbes is right that Martinez itself

doesn’t seem to require habeas petitioners to prove that they tried (and failed) to find counsel on

collateral review. See Reply [ECF No. 49] at 3–4 (“Respondent wishes to alter the standards set by

Martinez by requiring Petitioner to at least have requested counsel. Martinez simply does not require

that.”). And the Respondent’s reliance on Cannon v. Trammell, 796 F.3d 1256 (10th Cir. 2015), is

misplaced. Unlike Forbes, the petitioner in Cannon “insisted on proceeding pro se,” even after the state

postconviction court appointed a lawyer to represent him. Id. at 1266. Having thus “refuse[d] the

assistance of counsel,” the Cannon petitioner couldn’t deploy his pro se status to avail himself of

Martinez’s exception. Ibid.

Petition at 7; see also Trial Tr. [ECF No. 21-1] at 326 (“[Detective:] You know the system very well,

okay? Do your friends know that you have been in prison; yes or no? The Defendant: Yeah.”). It’s

undisputed that defense counsel responded to this video by moving immediately for a mistrial. See Trial.

Tr. [ECF No. 21-1] at 327 (“I would ask for a mistrial based on that, Your Honor. I think it’s too

prejudicial and the jury heard it.”); id. at 328 (“My recommendation [to Forbes] is to move for a

mistrial.”). According to Forbes, though, counsel pushed him to accept a curative instruction instead

of a mistrial and told him “that if he does not win [at] trial he could still appeal the issue.” Second

Amended Petition at 7. Forbes now says this was bad advice. See ibid. (“The Petitioner did not

understand the ramifications of mistrial or not. . . . [C]ounsel [incorrectly] told the Petitioner that this

issue would be available for appellate review.”). And (he adds) this bad advice was the only reason he

agreed to forgo a mistrial in favor of a curative instruction. See id. at 8 (“If not for counsel’s advice,

the Petitioner would have insisted on moving for a mistrial. Petitioner’s decision was solely based on

what Counsel told him.”).

This claim isn’t “substantial” because Forbes’s allegations are fully contradicted by the record.

The trial transcript makes clear that, as soon as the State played this video, defense counsel immediately

objected and moved for a mistrial—saying that the reference to a prior term of incarceration was “too

prejudicial and the jury has heard it.” Trial Tr. [ECF 21-1] at 326–27. The court then excused the jury

and gave Forbes a chance to talk the matter over with his lawyer. See id. at 327 (“We’re going to be in

recess 10 minutes, so you all can be prepared to make your argument.”). After this brief recess, counsel

told the court that his “recommendation is to move for a mistrial. I explained it to [Forbes]. That

doesn’t mean he goes free, it means we have to do it all over again.” Id. at 328. Under oath, Forbes

said that he “would like to have more time” to discuss the mistrial issue with his counsel. Id. at 329.

After another short break, defense counsel told the court:

Your Honor, I’ve had more time to talk to my client. We’ve discussed the mistrial

issue. I’ve explained to him other options of a curative instruction and if he would like

to proceed forward with the trial.

I obviously would like a mistrial. He would like to move forward with the trial. If the Court issued

a very stern curative instruction, basically saying that the testimony on the video, the

video interrogation of the defendant. The video by the officer is not required to tell

the truth. The officer is interrogating him. There’s no evidence before the Court he

was ever in prison. It’s a common technique to say something that isn’t true.

Id. at 329–30 (emphasis added).

The court then discussed the matter with Forbes, who was still under oath. The ensuing

colloquy went like this:

The Court: First I want to know—take it one step at a time—your desire, or wish, to

move this Court for a mistrial at this time?

The Defendant: No.

The Court: Do you wish to go forward?

The Defendant: Yes.

The Court: Now, are you doing this freely and voluntarily?

The Defendant: Yes.

The Court: Has anyone threatened or coerced you to make this decision?

The Defendant: No.

The Court: You’re thinking clearly today?

The Defendant: Yes.

The Court: I’m going to find that he’s making a knowing and freely and voluntary

waive [sic] for a motion for mistrial.

Id. at 331. When the jurors returned, the judge gave them the curative instruction Forbes had asked

for: “[A]ny statements,” the court said, “made by the police interrogator is not to be considered by

you jurors as evidence of the defendant’s guilt,” because “the statements made by the police

interrogator during the interrogation of the defendant may be false and misleading.” Id. at 342.

This colloquy easily disposes of Forbes’s Martinez claim. Contra Forbes’s position here,

defense counsel unambiguously told the court that he wanted to move for a mistrial, but that Forbes

was insisting on going forward with a curative instruction. See id. at 329 (“I obviously would like a

mistrial. [Forbes] would like to move forward with the trial.”). In other words, counsel did what any

competent lawyer would’ve done: apprise the client of his options, explain the costs and benefits of

each, and allow the client to decide which road to take. See Trial Tr. [ECF No. 21-1] at 329 (“I’ve had

more time to talk to my client. We’ve discussed the mistrial issue. I’ve explained to him other options

of a curative instruction and if he would like to proceed forward with the trial.”). The objective record

thus conclusively belies Forbes’s assertion in Ground Two, which is that counsel led him to accept a

curative instruction over a mistrial. See Second Amended Petition at 8 (“If not for counsel’s advice,

the Petitioner would have insisted on moving for a mistrial. Petitioner’s decision was solely based on

what Counsel told him.”). Indeed, when the court put Forbes under oath and asked him whether he

wanted to move for a mistrial, Forbes said: “No.” Trial Tr. [ECF No. 21-1] at 331. And, when the

court asked him whether he wanted to “go forward” with the trial, he answered: “Yes.” Ibid. In the

world of habeas corpus, there are no take-backs. See Blackledge v. Allison, 431 U.S. 63, 73–74 (1977)

(“[T]he sworn representations of the defendant . . . constitute a formidable barrier in any subsequent

collateral proceedings. Solemn declarations in open court carry a strong presumption of verity.”).

In any event, even if counsel had opted not to ask for a mistrial on his own, that decision—

“to refrain from asking the court for a mistrial”—is “a tactical decision entrusted to counsel,” which,

as a practical matter, we almost never second-guess. United States v. Burke, 257 F.3d 1321, 1324 (11th

Cir. 2001); see also Brewster v. Hazel, 913 F.3d 1042, 1057 (11th Cir. 2019) (“Of course, counsel can for

reasonable strategic reasons refrain from making a valid objection or moving for relief . . . if there are

reasonable strategic reasons for not objecting or moving.”).

Nor could Forbes show that the decision to proceed with a curative instruction prejudiced him.

Cf. Harris, 874 F.3d at 688 (“Federal review of a procedurally defaulted claim is available if a petitioner

can show both cause for the default and actual prejudice resulting from it.” (emphasis added)). A defendant

is prejudiced only when “there is at least a reasonable probability the result of the proceeding would

have been different if he had been allowed to raise the issue in state court.” Ledford v. Warden, Ga.

Diagnostic Prison, 975 F.3d 1145, 1161 (11th Cir. 2020) (cleaned up). Forbes cannot show prejudice for

two reasons. First, there’s no indication that the trial judge would’ve granted the mistrial motion. In

fact, all indications are that the judge would have reserved ruling on the mistrial motion until after the

jury had rendered its verdict. See Trial Tr. [ECF No. 21-1] at 329 (“I’m going to reserve, Mr. Shulz,

until the verdict comes back—actually, I don’t know that yet. Let me see what you have decided.”).

And there’s no reason to believe that, once the jury convicted Forbes, the judge would have granted

that motion and thrown out the verdict. Second, Forbes doesn’t explain how the curative instruction

could have prejudiced his case given Florida’s “well-established presumption that juries follow trial

court instructions[.]” Sutton v. State, 718 So. 2d 215, 216 (Fla. 1st DCA 1998). And, since we presume

that the jury followed the judge’s instruction—in which the judge forbade the jurors from considering

the officer’s statement about Forbes’s prior incarceration—no mistrial was necessary. See Lowe v. State,

259 So. 3d 23, 52 (Fla. 2018) (“Moreover, in the absence of evidence to the contrary, we presume that

jurors follow the trial court’s instructions.”). There’s thus no “reasonable probability” that the failure

to pursue a mistrial had any effect on the outcome of Forbes’s trial.

Because Forbes hasn’t shown either “cause” or “prejudice,” Ground Two is procedurally

defaulted and must be DISMISSED.5

5 Normally, when a habeas petition includes both exhausted and unexhausted claims, we must “either

dismiss the petition, or grant a stay and abeyance to allow the petitioner to exhaust the unexhausted

claims[.]” Ogle v. Johnson, 488 F.3d 1364, 1370 (11th Cir. 2007) (cleaned up). But we don’t need to

consider a stay “when the claims raised for the first time at the federal level can no longer be litigated

on the merits in state court because they are procedurally barred.” Kelley v. Sec’y for Dep’t of Corr., 377

II. The Merits

We turn, then, to the merits of Grounds One, Three, and Four. AEPDA rather strictly

circumscribes our review of “any claim that was adjudicated on the merits in State court

proceedings[.]” 28 U.S.C. § 2254(d). In resolving the remaining claims, therefore, we ask only whether

the state court’s decision “involved an unreasonable application of[ ] clearly established federal law”

or “was based on an unreasonable determination of the facts[.]” Ibid. The highest state court to pass

on the merits of Grounds Three and Four was the Fourth DCA, which affirmed the state

postconviction court’s denial of both claims in an unwritten opinion. See Forbes, 272 So. 3d at 1275.

Since the Fourth DCA didn’t provide us with an independent analysis, we 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, which is the state postconviction court’s order denying Forbes’s

Postconviction Motion, see Order Denying Postconviction Motion [ECF No. 20-3] at 97–101.

The Fourth DCA also disposed of Ground One in an unwritten decision. See Order Denying

State Habeas Petition [ECF No. 20-2] at 37 (“ORDERED that the January 9, 2017 petition alleging

ineffective assistance of appellate counsel is denied on the merits.” (emphasis added)). But, because

Forbes brought that claim to the appellate court in the first instance, no other state court provided a

“relevant rationale” on that claim. Still, we can apply § 2254(d)’s standard of review when, as here, “a

state court’s decision is unaccompanied by an opinion explaining the reasons relief has been denied,”

because we presume “that the state court adjudicated the claim on the merits in the absence of any

F.3d 1317, 1351 (11th Cir. 2004). Forbes can no longer raise Ground Two in a state postconviction

motion because Florida’s two-year window for him to bring a Rule 3.850 motion closed in August of

2018. See FLA. R. CRIM. P. 3.850(b) (“No other motion shall be filed or considered pursuant to the rule

if filed more than 2 years after the judgment and sentence become final[.]”); see also Direct Appeal

Mandate [ECF No. 20-1] at 248 (establishing that Forbes’s state-court conviction became final on

August 12, 2016).

indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 98–99. That

presumption makes sense in our case because the Fourth DCA, as we’ve seen, disposed of Ground

One “on the merits.” Order Denying State Habeas Petition [ECF No. 20-2] at 37.

At this stage, then, Forbes bears the “burden [ ] to demonstrate that there was no reasonable

basis for the decision of [the state court] to deny his claim[s].” Tarleton v. Sec’y, Fla. Dep’t of Corr., 5

F.4th 1278, 1291 (11th Cir. 2021); see also, e.g., Pierre v. Dixon, 2022 WL 3549781, at *8 (S.D. Fla. Aug.

18, 2022) (Altman, J.) (“[W]e apply § 2254(d)’s heightened standard to the appellate-counsel claims

and, in doing so, grant Pierre relief only if he can show that there was no ‘reasonable basis’ for the

state court’s decision.”).

A. Ground One

In Ground One, Forbes alleges that his appellate counsel was ineffective for not moving to

“strike [the] State’s Answer Brief on the basis that the State referenced statements that was [sic] not

brought out to the jury during the trial.” Second Amended Petition at 4. Ground One arises from a

recording the State played during Forbes’s trial. The recording captured an inculpatory conversation

between Forbes, his codefendant (West), and a third suspect (Jerald Perry) in the back seat of a police

vehicle. See generally Recording Tr. [ECF No. 20-1] at 46–55. According to Forbes, the State had two

transcripts of this recording: the first (shorter) transcript, prepared by a court reporter, “transcribed

the recording as it was played to the jury”; the second, however, included additional portions of the

recording “that the jury never heard.” Ibid.

While the case was on direct appeal, the State filed a motion in the Fourth DCA “to

reconstruct and supplement the record on appeal” with the second transcript. Second Amended

Petition at 4; see also Motion to Reconstruct/Supplement Record on Appeal [ECF No. 20-1] at 156–

62. And, again, it’s this second transcript that purportedly included “evidence that was not presented

to the jury.” Second Amended Petition at 4. Although the Fourth DCA denied the State’s motion, see

Order Denying Motion to Reconstruct/Supplement Record [ECF No. 20-1] at 170, Forbes claims

that the State still filed an Answer Brief that contained “over 47 references of statements that were

not within the Court Reporter’s certified transcripts included in the Record on Appeal,” Second

Amended Petition at 4.

The Respondent concedes that “the State liberally cited to statements by the three co-

conspirators which were caught on an audiotape in the police car.” Response at 63. But it insists that

the State didn’t “cite to any portion of the recording that was not played to the jury.” Ibid. To

substantiate this argument, the Respondent invites us to compare the State’s Answer Brief [ECF No.

20-1] at 172–225, the shorter trial transcript [ECF No. 21-1] at 352–55, a (longer) transcript of the

recording that was given to the jury as a demonstrative aid [ECF No. 20-1] at 46–55, and a CD that

contains the entire recording the jury heard [ECF No. 26]. Forbes, for his part, agrees that we should

engage in this comparison. See Reply at 5 (“Petitioner urges this Court to do just that. Compare.”).

And so, we did. We listened to the recording on the CD. See Notice of Conventional Filing

(CD) [ECF No. 26]. And we compared what we heard to both transcripts: the one the jury saw as a

demonstrative aid (the longer transcript), see Demonstrative Aid Tr. [ECF No. 20-1] at 45–55, and the

one that was prepared by the court reporter during the trial (the shorter transcript),6 see Trial Tr. [ECF

No. 21-1] at 352–55. We then compared those two transcripts to the 47-or-so references the State

made to the recording in its Answer Brief. See Direct Appeal Answer Brief [ECF No. 20-1] at 188–96.

And here’s what we found: The CD, the longer (demonstrative) transcript, and the State’s Answer

6 This version of the transcript—which is just a part of the overall trial transcript—is significantly

shorter than the demonstrative transcript the jury was given as an aid to help them follow along as the

recording was played. Reviewing the record, it seems clear to us that this discrepancy arose because

this shorter transcript simply reflects what the court reporter was able to understand (and transcribe)

of the recording in real time during the trial. Given the degree of difficulty associated with that task,

much of this transcript simply says: “Unintelligible.” Indeed, at one point, rather than transcribe what

she was hearing, the court reporter wrote: “A lot of whispering going on. Unable to tell who is speaking

or what is being said.” Trial Tr. [ECF No. 21-1] at 353.

Brief are all consistent; the first two (the CD and the demonstrative aid) basically encapsulate the whole

conversation from the backseat of the police car, and the Answer Brief cites liberally from that

conversation. As we’ve said, however, the version of this conversation that appears in the trial

transcript is a lot shorter and includes only a very small part of the overall recording. Compare Trial Tr.

[ECF No. 21-1] at 352–55, with Demonstrative Aid Tr. [ECF No. 20-1] at 46–55. Forbes has pounced

on this inconsistency, declaring that the shorter conversation reflected in the trial transcript is the only

true indication of what the jury actually heard. See Reply at 5 (“The trial Judge never directed the

stenographer to stop transcribing at any point during trial. Therefore, her transcripts are the complete

version of what the jury heard.”).

But that’s just not true. Looking at other parts of the trial record, in fact, we can see clearly that

the jury heard the full recording—and that they were shown the full transcript of that recording as a

demonstrative aid—even if the court reporter, operating in real time, was only able to understand (and

transcribe) some portions of that recording. So, for instance, in her closing argument, the prosecutor

several times quoted statements Forbes had made in the recording. Forbes, the prosecutor said, (1)

proclaimed that “[t]he only thing that links me is the tire iron,” (2) chastised West for thinking that

Forbes had left because “[w]e’re waiting on this money, bitch,” and (3) instructed West “to take this

rap for us.” Trial Tr. [ECF No. 21-1] at 400–02. Although these parts of the recording don’t appear in

the shorter version of the conversation that’s reflected in the trial transcript, see generally id. at 352–55,

they’re all on both the CD and the longer transcript the jury used as a demonstrative aid while the

recording was being played, see Demonstrative Aid Tr. [ECF No. 20-1] at 49 (“[Forbes:] What the fuck

we leaving you for, man. We waiting on this money bitch.”); id. at 51 (“[Forbes:] You got to take the

charge. You feel me?”); id. at 54 (“[Forbes:] [T]he guy told her that you used a stool to break the

window first and then used the tire iron. So the tire is what link [sic] me.”).7 None of these references

would’ve meant anything to the jury unless the State had played the whole recording. And we know that the

jury heard the whole recording because neither Forbes’s lawyer, nor the judge, nor Forbes himself had

any problem with the prosecutor quoting, in closing, from a recording that, if Forbes’s version of

events is true, the jury would never have heard. See generally Trial Tr. [ECF No. 21-1] at 399–403

(showing no objections to the prosecutor’s repeated quotations from the recording).

Two more things on this: One, on direct appeal, the parties quibbled over the quality of the

shorter version of the backseat conversation that was included in the trial transcript. During that fight,

the State observed that the whole recording “was played during a detective’s testimony,” but it lamented

that “the court reporter did not fully transcribe the tape itself; large portions of the playback were simply

marked ‘unintelligible.’” Motion to Reconstruct/Supplement Record [ECF No. 20-1] at 157 (emphasis

added) (quoting Trial Tr. [ECF No. 21-1] at 351–55). The State’s recommendation was either to “order

reconstruction of the record through the preparation of a second trial transcript” or to have the record

“supplemented with a copy of the transcript that was provided to the jury below [i.e., the

Demonstrative Aid Transcript].” Id. at 158, 160. Although Forbes’s appellate counsel objected to this

request, he did so only on the ground that “the motion [is] a waste of taxpayer money, an unnecessary

delay of the appeal, and ultimately an unnecessary extension of Appellant’s prison sentence.” Response

to Motion to Reconstruct/Supplement Record [ECF No. 20-1] at 164. Forbes’s lawyer, in other

words, maintained that supplementing the record with the demonstrative-aid transcript was

unnecessary because the Fourth DCA could simply listen to the recording—the obvious implication

being that the jury had heard everything that was on that recording. See id. at 166 (“There is a CD of the

7 As we’ve indicated, the jury received a copy of the longer transcript before the recording was played.

See Trial Tr. [ECF No. 21-1] at 350–51 (“Q: Now, Detective, . . . was a transcript made of the recording

as well? A: Yes, it was. . . . [Prosecutor:] Your Honor, permission to give a copy of the transcript to

the jury? The Court: Okay.”).

recording in the appellate record. . . . [T]he CD is used to resolve any transcript problems—a second

transcript is not used to resolve problems and thus is unnecessary.”).

Two, the Fourth DCA has already rejected this claim “on the merits,” Order Denying State

Habeas Petition [ECF No. 20-2] at 37, so our review is necessarily limited to the discrete question

whether the Fourth DCA’s ruling “was based on an unreasonable determination of the facts,” 28

U.S.C. § 2254(d)(2). And, given everything we’ve said already, we think it eminently reasonable for the

Fourth DCA to have believed that the jury heard the whole recording.

While we took a somewhat meandering road to get here, the long and short of it is that there

was nothing wrong with the State’s Answer Brief. The jury heard the whole recording of the

conversation between Forbes and his coconspirators in the back of the police car. And the State cited

to that recording in its Answer Brief. We thus cannot blame appellate counsel for having failed to raise

a meritless objection to those citations. 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.”). Ground One, in sum, is

DENIED.8

B. Ground Three

In Ground Three, Forbes blames his trial counsel for not objecting to what he characterizes

as a “misleading and confusing” burglary instruction. Second Amended Petition at 9. Forbes identifies

two problems with the trial court’s burglary instruction. First, he claims that the instruction shouldn’t

have included the “act is committed clause” because he wasn’t “charged with being armed in the

course of the burglary.” Ibid. Second, he contends that the instruction deviated from Florida’s burglary

8 Even if counsel’s performance had been deficient, Ground One would still fail because Forbes has

failed to allege that he was prejudiced by these citations to the recording. Forbes says only that “[t]he

appellate court most likely relied on the State’s brief in its determination to affirm Petitioner’s

judgment of conviction.” Second Amended Petition at 5. But this speculation about what exactly the

appellate court might’ve relied on is plainly insufficient to sustain Forbes’s claim. See Aldrich v.

Wainwright, 777 F.2d 630, 636 (11th Cir. 1985) (“Speculation is insufficient to carry the burden of

a habeas corpus petitioner[.]”).

statute by falsely suggesting that a person’s intent can be determined “at the end of entering the

structure” rather than “at the time of entering the structure.” Id. at 10.

In denying this claim, the state postconviction court observed that “the Defendant was given

the standard jury instruction for burglary” and found that, under Florida law, counsel cannot perform

deficiently when he “‘fails to object to a standard jury instruction that has not been invalidated by [the

Florida Supreme Court].’” Order Denying Postconviction Motion [ECF No. 20-3] at 98 (quoting

Griffin v. State, 866 So. 2d 1, 15 (Fla. 2003)). And, while the trial court had, in reading the instruction to

the jurors, accidentally used the phrase “at the end of entering the structure,” this error was (the

postconviction court found) harmless because the written instructions the jury received used the right

phrasing: viz., “at the time of entering the structure[.]” Ibid. This was a reasonable application of federal

law.

The burglary instruction the jury received was identical to Florida’s standard jury instruction for

burglary offenses. Compare Jury Instructions [ECF No. 20-1] at 61–62, with FLA. STD. JURY INSTR.

(CRIMINAL) § 13.1. Under Florida law, “standard jury instructions are presumed correct,” Brown v.

State, 11 So. 3d 428, 432 (Fla. 2d DCA 2009)—meaning that counsel cannot be ineffective for failing

to object to a standard instruction unless the Florida Supreme Court had invalidated that instruction

before trial, see Boone v. State, 311 So. 3d 955, 958 (Fla. 1st DCA 2020) (“Counsel cannot be ineffective

for failing to object to a standard jury instruction that has not been invalidated.”); see also Griffin, 866

So. 2d at 15 (“[I]t is not deficient performance when counsel fails to object to a standard instruction

which has not been invalidated by this Court.”).9

9 We also agree with the state postconviction court that, by providing the jury with complete (and

accurate) written instructions, the trial judge rendered harmless any error she made in her oral

presentation of those instructions. See Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 779 (11th Cir. 2003)

(“[W]e conclude that the complete written instructions . . . rendered the error in the trial court’s oral

instructions harmless.”), abrogated on other grounds by Hedgpeth v. Pulido, 555 U.S. 57 (2008); see also Polls v.

State, 134 So. 3d 1068, 1070 (Fla. 4th DCA 2013) (“[W]e acknowledge that replacing the word

‘processing’ with the word ‘possessing’ in the oral instruction on ‘manufacture’ resulted in an incorrect

Forbes doesn’t allege that the burglary instruction the trial court gave had previously been

invalidated by the Florida Supreme Court. See generally Second Amended Petition. And “Florida

precedent indicates that trial counsel’s failure to object to standard jury instructions that had not been

invalidated by the Florida Supreme Court do not render counsel’s performance deficient.” Conrad v.

Sec’y, Fla. Dep’t of Corr., 663 F. App’x 746, 753 (11th Cir. 2016). Ground Three is therefore DENIED.

C. Ground Four

Finally, in Ground Four, Forbes avers that counsel was ineffective for failing to “file a motion

to suppress or object to evidence derived from an unlawful search of a cell phone.” Second Amended

Petition at 11. Here, Forbes appears to suggest that police officers illegally searched his cellphone the

day before they obtained a warrant for the contents of that phone. In support, Forbes claims that, on

the day he was arrested, “Officer Percival filed a probable cause affidavit in which he specifically stated

that . . . ‘cell phones indicated that codefendant West was calling and speaking with the cellular phone

inside Forbes[’s] vehicle as they sat two blocks away during the burglary.’” Ibid. (emphasis in original).

This “admission,” Forbes insists, proves that the officers searched his phone on the day he was

arrested (which was one day before they got their warrant). See id. at 11–12.

The state postconviction court found that “Defendant’s claim is pure speculation and refuted

by the record” because the subsequent cellphone warrant was based, not on any illegal search of

Forbes’s phone, but on “the hidden recording device in the vehicle where the three codefendants

discussed phone calls made to one another during the burglary.” Order Denying Postconviction

Motion [ECF No. 20-3] at 97–98. This conclusion was reasonable.

The surreptitious police-cruiser recording established that Forbes, West, and Perry were using

their cellphones to communicate with one another before and during the burglary. See, e.g.,

definition of a disputed element of the crime. However, given that the written jury instructions were

correct, we do not believe that fundamental error occurred merely because the trial court misstated a

single word while orally instructing the jury.”).

Demonstrative Aid Tr. [ECF No. 20-1] at 53–54 (“[Forbes:] . . . them phone calls. You feel me? [West:]

Yet they got your number, too. [Forbes:] Yeah, you called but on my phone off . . . you feel me? So

I’m telling them man, my phone is off man. I don’t, I don’t know nothing about no phone calls man.”).

Officer Percival’s affidavit (the same one Forbes relies on) also indicated that West admitted to the

burglary and that Forbes “admitted knowing West.” Probable Cause Affidavit [ECF No. 20-1] at 16.

In other words, when they reviewed the backseat recording, the officers already knew that the

defendants were using their cellphones to coordinate the burglary. See Response at 86 (“[T]he record

shows that the reason Percival wrote that the phones ‘indicated’ [was] because 1) all three co-

conspirators had phones in their possession when they were detained, 2) Perry was talking on his

phone when he was detained, 3) Petitioner had admitted to a detective on April 5, 2012, that Perry

and West were talking to each other by phone, and 4) the secretly taped conversation between [the

codefendants] on April 5, 2012, revealed that West had been communicating with Perry by phone

during the burglary[.]”). They thus didn’t need to search Forbes’s phone illegally to secure that

information.

But here’s the thing: Even if the officers had illegally searched Forbes’s phone before they got

the warrant, the phone’s contents would have been admissible at trial under the doctrine of “inevitable

discovery.” As we just discussed, law enforcement had, without searching the phone, probable cause

to suspect that Forbes had used his cellphone to facilitate the burglary. Because the contents of

Forbes’s phone “would have been discovered by lawful means,” United States v. Johnson, 777 F.3d 1270,

1277 (11th Cir. 2015), the exclusionary rule wouldn’t have barred their admission at trial, see ibid.

(“Officer Gregory’s investigation of the truck began before, and was independent of, his illegal search.

Subtract the illegal search from the factual picture in this case and nothing of substance would have

changed.” (cleaned up)), overruled on other grounds by United States v. Watkins, 10 F.4th 1179 (11th Cir.

2021) (en banc); United States v. Taro, 2016 WL 3059542, at *6 (M.D. Fla. May 31, 2016) (Dalton, J.)

(“Here the prosecution adequately demonstrated that it was actively pursuing an investigation of

Defendant . . . . Moreover, the evidence shows that the Agents would have obtained a search warrant

with particularized reference to cell phones based on [previous statements].”).10

We therefore DENY Ground Four.

EVIDENTIARY HEARING

We won’t hold an evidentiary hearing in this case. “[W]hen the state-court record ‘precludes

habeas relief’ under the limitations of § 2254(d), a district court is ‘not required to hold an evidentiary

hearing.’” Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (quoting Schriro v. Landrigan, 550 U.S. 465, 474

(2007)). Based on what we’ve said—including and especially the presence of a robust trial and state-

postconviction record—we don’t think we’d benefit from any further factual development.

CERTIFICATE OF APPEALABILITY

A Certificate of Appealability (“COA”) is appropriate only when the movant makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To deserve a COA,

therefore, the movant must show that “reasonable jurists would find the district court’s assessment of

10 Citing Townsend v. Sain, 372 U.S. 293 (1963), Forbes asks us to hold an evidentiary hearing to

determine “what Deputy Percival meant when he wrote ‘cell phones indicated’” in his probable-cause

affidavit. Reply at 8–9. But Townsend is an outdated precedent that precedes, by more than three

decades, the passage of AEDPA, which authorizes us to hold an evidentiary hearing only if the

petitioner identifies either “a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court,” or “a factual predicate that could not have been previously discovered

through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2)(A); see also Shinn v. Ramirez, 142 S. Ct.

1718, 1734 (2022) (clarifying that an evidentiary hearing should only be granted when the petitioner

demonstrates “that further factfinding would demonstrate, by clear and convincing evidence, that no

reasonable factfinder would have convicted him of the crime charged”). Forbes hasn’t even tried to

meet this rigorous standard here—probably because there’s nothing new about Officer Percival’s

affidavit. Indeed, Forbes seems to concede that the affidavit has been available to him since before his

criminal trial. The whole point of Ground Four, after all, is that, despite knowing about Deputy

Percival’s affidavit, Forbes’s lawyer didn’t move to suppress the cellphone evidence before the trial. See

Postconviction Motion [ECF No. 20-3] at 63 (“Officer Percival’s Affidavit clearly reveals that the

Broward County Sheriff Department conducted an examination of the cellular phones before

obtaining a search warrant. Thus, any information obtained (and then used during trial) subsequent to

the illegal search . . . was subject to suppression. Trial counsel failed to motion [sic] the Court to

suppress or otherwise challenge the evidence obtained from the cellular phones.”).

the constitutional claims debatable or wrong.” Sack v. McDaniel, 529 U.S. 473, 484 (2000). “Where 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 dental of a constitutional right’ and ‘whether the district court was correct in its procedural

ruling.” Eagle v. Linaban, 279 F.3d 926, 935 (11th Cir. 2001) (quoting Frankkn v. Hightower, 215 F.3d

1196, 1199 (11th Cir. 2000)). Jurists of reason wouldn’t find debatable our decision to dismiss Ground

Two as procedurally defaulted. Nor would “reasonable jurists” disagree with our decision to deny

Grounds One, Three, and Four on the merits. We thus DENY any request for a COA.

eK

Having carefully reviewed the record and the governing law, we hereby ORDER AND

ADJUDGE that the Second Amended Petition is DISMISSED as to Ground ‘Iwo and DENIED

as to Grounds One, Three, and Four. Any request for a COA is DENIED, any request for an

evidentiary hearing is DENIED, all deadlines are TERMINATED, and any pending motions are

DENIED as moot. ‘The Clerk shall CLOSE this case.

DONE AND ORDERED in the Southern District of Florida on November 18, 2022.

Sa

UNITED STATES DISTRICT JUDGE

cc: Denaldo Forbes, pro se

counsel of record

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