# Marrett v. Florida Department of Corrections

> District Court, S.D. Florida · December 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10121451

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** December 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10121451

## How later opinions describe it (automated extraction)

- recognizing that vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim and do not warrant an evidentiary hearing

## Opinion text

United States District Court
for the
Southern District of Florida

Marvin Marrett, Petitioner )
)
v. )
Civil Action No. 22-60680-Scola
)
Sec’y, Fla. Dep’t of Corr., )
Respondent.

Order
Before the Court is pro se Petitioner Marvin Marrett’s petition under 28
U.S.C. § 2254 (ECF No. 1). The petition alleges four claims of ineffective
assistance of counsel. (See generally id.). Respondent filed a response (ECF No.
8), with an appendix including attached exhibits 1–24 (ECF No. 9-1), the trial
transcripts (ECF No. 10-1), and the sentencing transcripts (ECF No. 10-2).
Marrett thereafter filed a reply (ECF No. 11). The Court has carefully reviewed
the parties’ written submissions, the record, and applicable law. For the reasons
explained below, the petition is denied.
1. Background
On October 1, 2015, Marrett was convicted by a jury in Case No. 12-
15648CF10A, Seventeenth Judicial Circuit of Florida, in and for Broward
County, for first-degree attempted murder and shooting into an occupied vehicle.
(See Verdict, ECF No. 9-1 at 60).1 The charges stemmed from an argument
between Marrett and his girlfriend. (See Trial Transcripts ECF No. 10-1 at 376:2–
10). At trial, a witness testified to seeing Marrett’s girlfriend “spit on him.” (Id. at
376:16). Marrett then went inside their home, retrieved a firearm, and shot his
girlfriend three times as she attempted to flee in her vehicle. (See id. at 376:16–
25, 377:1–15). Marrett was adjudicated guilty and sentenced to a 40-year
mandatory minimum prison term on count one, followed by ten years in prison
on count two. (See Judgment, ECF No. 9-1 at 64–72).

1 The Court uses the pagination generated by the electronic CM/ECF database, which
appears in the headers of all court filings.
On appeal, the Fourth District per curiam affirmed Marrett’s conviction
without a written opinion. See Marrett v. State, 229 So. 3d 352 (Fla. 4th DCA
2016). Mandate issued on January 13, 2017 (see ECF No. 9-1 at 106), and
Marrett did not seek certiorari review with the U.S. Supreme Court.
On March 10, 2017, Marrett filed a pro se Fla. R. Crim. P. 3.800(a) motion
to correct illegal sentence, alleging three claims: 1) his sentence was illegal based
on scoresheet error; 2) his sentence was illegal because he could not receive
consecutive sentences for two convictions arising out of a single criminal episode;
and 3) his sentence on count one was illegal as it exceeded the maximum
punishment allowed by law. (See Rule 3.800 Mot., id. at 111–15). The
postconviction court denied the Rule 3.800 motion on June 20, 2017 (see Order
Den. Rule 3.800 Mot., id. at 163), and Marrett did not appeal (see id. at 814–17).
On May 15, 2017, Petitioner filed a Fla. R. Crim. P. 3.850 motion for
postconviction relief, alleging six claims for relief: 1) ineffective assistance of trial
counsel for advising Petitioner not to testify thereby making his in-court waiver
of his right to testify involuntary; 2) ineffective assistance of trial counsel for
failing to a) present evidence to support the “heat of passion” defense and b)
subject the State’s case to the “proper level of adversarial testing”; 3) ineffective
assistance of trial counsel for failing to file a motion to suppress/object to
admission of certain clothing items without a proper chain of custody; 4)
ineffective assistance of trial counsel for failing to remove juror Crooks; 5)
ineffective assistance of trial counsel for prematurely ending plea negotiations
prior to trial; and 6) cumulative error based on the conduct of trial counsel and
the trial court, as set forth in grounds 1–5. (See Rule 3.850 Mot., id. at 179). On
June 18, 2021, the postconviction court denied Marrett’s Rule 3.850 Motion.
(See Order Den. Rule 3.850 Mot., id. at 791). Marrett appealed, and on February
24, 2022, the Fourth Circuit per curiam affirmed. See Marrett v. State, 334 So.
3d 622 (Fla. Dist. Ct. App. 2022).
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). 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). “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). This
standard is “difficult to meet.” White v. Woodall, 572 U.S. 415, 419 (2014).
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). 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).
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)
(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. Timeliness, Exhaustion/Procedural Default
Respondent concedes, and the Court confirms, that the petition was timely
filed. (See Resp at 8, ECF No. 8). Respondent further concedes that Grounds
One, Three, and Four are exhausted, but asserts that Ground Two “was not
exhausted in state court.” (Id. at 12).
The Court has the authority to “skip over the procedural default analysis”
for a state prisoner's federal claim if it is easier to deny those claims on the
merits. Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“[A] federal
court may skip over the procedural default analysis if a claim would fail on the
merits in any event.”); see also 28 U.S.C. § 2254(b)(2) (“An application for a writ
of habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.”). Here, it
is easier to deny Ground Two on the merits and so the Court will “skip over the
procedural default analysis.” Dallas, 964 F.3d at 1307.
4. Discussion
Ground One
Marrett argues that counsel was ineffective for advising him not to testify
because his testimony was essential to establishing a “heat of passion” defense.
(Pet. at 5, ECF No. 1). He states that his testimony would have “contradicted the
inconsistent testimony of the State’s key witnesses” and counsel’s “unreasonable
advice” caused him to be wrongly convicted. (Id.). Marrett raised this same claim
in his Rule 3.850 motion. (See ECF No. 9-1 at 179). The postconviction court
summarily denied relief. (See Order Den. Rule 3.850 Mot., id. at 791). Marrett
appealed, and the Fourth Circuit per curiam affirmed. See Marrett v. State, 334
So. 3d 622 (Fla. Dist. Ct. App. 2022). Thus, this claim must be addressed
applying the deferential standard for federal court review of state court
adjudications, as required by 28 U.S.C §2254(d).
Applying that standard, Marrett is not entitled to relief. First, Marrett does
not proffer the testimony he would have given to constitute adequate legal
provocation to support the "heat of passion” instruction. His assertion is purely
speculative and conclusory. See 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). Through his conclusory assertions, Marrett fails to show a
reasonable probability that the outcome would have been different had he
testified at trial. See Strickland, 466 U.S. at 694. As such, Ground One is due to
be denied under the prejudice prong of Strickland. See id. at 697.
Marrett’s claim is also refuted by the record. In a colloquy during the trial,
Marrett affirmed under oath his decision not to testify:
THE COURT: So Mr. Marrett, we’re at the stage of the case
where the State has rested and where the defense could put
on a case. Remember, the defendant is not required to prove
anything. However, it is your choice whether you want to
testify or remain silent. Now almost all decisions in a
criminal case are made by the criminal defense lawyer.
There is consultation with the client. But it’s really the
lawyer’s call on most decisions. This decision on whether
you testify or remain silent is completely yours. Mr.
Lewis can give you advice like I know he has and will. But
he can’t tell you what to do. He can only advise you. It’s
your choice whether you want to testify or not. Have you
had enough time to think about that?

[Marrett]: Yes, Your Honor.

THE COURT: Have you had time to talk to Mr. Lewis about
it?

[Marrett]: Yes.

THE COURT: Okay. What is your choice? What would you
like do?

[Marrett]: I would like to proceed with what me and Mr.
Lewis talked about.

THE COURT: Okay. And what you’re specifically saying is
that by proceeding with what you and Mr. Lewis talked
about, that is you would like to remain silent?

[Marrett]: Yes, Your Honor.

(ECF No. 10-1 at 621:7–25, 622:1–11) (emphasis added). A defendant’s sworn
representations “constitute a formidable barrier in any subsequent collateral
proceedings.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). “Solemn declarations
in open court carry a strong presumption of verity.” Id. Furthermore, the record
shows that Marrett was present when his counsel argued for the “heat of
passion” instruction. (ECF No. 10-1 at 510:15–19). He was therefore aware that
the trial court initially reserved ruling to see how the evidence developed and
would decide the issue at the close of all the evidence. (See id. 526:2–20). At the
close of the State’s case, Marrett spoke with his counsel, indicated that he had
sufficient time to speak with his counsel, and made the decision to remain silent.
(See id. at 621:7–25, 622:1–11).
In other words, Marrett’s decision to remain silent was made knowing the
status of the evidence, what was required for the instruction, and what had been
presented at that point in the trial. In sum, Marrett’s allegations in Ground One
are speculative, conclusory, and belied by the record. Having reviewed the record
in full, the Court finds nothing unreasonable with the trial court’s rejection of
ineffective assistance in Ground One. Wilson, 138 S. Ct. at 1192 (requiring a
federal court sitting in habeas to defer to “reasonable” reasons given by the state
court in rejecting a claim for relief). Ground One is thus denied under the
prejudice and performance prongs of Strickland.
Ground Two
Marrett argues that his counsel was ineffective for failing to challenge the
trial court’s ruling on the heat of passion instruction. (See ECF No. 1 at 26). His
claim is again refuted by the record.
Marrett’s counsel argued to the trial court that there was “adequate
evidence in the record” to give the instruction and asserted belief that “it would
be reversible error not to give [the requested instruction.]” (ECF No. 10-1 at
525:17–19). The record shows that Marrett’s counsel repeatedly argued for the
“heat of passion” instruction set forth in Florida’s Standard Jury Instruction 6.2.
(See ECF No. 10-1 at 510:14–25, 511:1–25, 512:1–18, 520:14–20, 524:9–25,
525:1–19, 627:14–24). The State opposed and the trial court denied the
requested instruction based on the evidence and applicable law. (See id. at
628:7–17). Marrett’s counsel preserved, and later argued, the issue on appeal.
Counsel cannot be deemed ineffective for failing to act when, in fact, he
did act. See Stephens v. McNeil, 2011 WL 939808, at *16 (M.D. Fla. Mar. 17,
2011) (“[C]ounsel cannot be deemed ineffective for failing to object when, in fact,
he did object.”). Marrett therefore fails to establish deficient performance. See
Strickland 466 U.S. at 697. Accordingly, Ground Two is denied.
Ground Three
Marrett argues that his counsel was ineffective “for failing to pursue plea
negotiations” as there was a “reasonable probability” that a 35-year offer would
have been extended and accepted. (ECF No. 1 at 28). Again, his claim is refuted
by the record.
Marrett’s offer of 25-years was rejected by the prosecutor. (See ECF No.
10-1 at 3:19–25, 4:1–2). The prosecutor stated that he told Marrett’s counsel “if
his client wanted to offer 35, I would discuss it with the victim. But that never
came. So there has been no official offer.” (Id. at 4:2–5). The record indicates that
Marrett decided to proceed to trial instead of pursuing a 35-year offer; and, in
any event, “there is no constitutional right to plea bargain.” Weatherford v.
Bursey, 429 U.S. 545, 561 (1977); see also United States v. Palmer, 809 F.2d
1504, 1508 (11th Cir. 1987) (“The government was under no obligation to enter
into any plea bargaining or to accept any deal offered by Palmer.”). Marrett’s
counsel could not communicate an offer that did not exist, nor could he force
the State, or his client, to plea bargain. Marrett fails to show deficient
performance. See Strickland 466 U.S. at 697. Accordingly, Ground Three is
denied.
Ground Four
Marrett argues that his counsel was ineffective for failing to put the State’s
case to a proper adversarial test. (See ECF No. 1 at 10). Specifically, he states
that counsel failed to introduce any evidence to substantiate the only viable
defense of “heat of passion.” (Id.). Marrett raised these same claims in Ground 2
of his Rule 3.850 motion. As previously discussed, the postconviction court
denied relief, Marrett appealed, and the Fourth District affirmed.
Here, yet again, Marrett’s claims are refuted by the record. As discussed
above in Ground Two, Marrett’s counsel argued for the “heat of passion”
instruction set forth in Florida’s Standard Jury Instruction 6.2. The request was
denied by the trial court, and counsel preserved, and later argued, the issue on
appeal. That said, counsel was permitted to argue the “heat of passion”
instruction contained in Florida Standard Jury Instruction 6.1. In closing
argument, Marrett’s counsel told the jury that “if you have a reasonable doubt
as to whether or not his conduct occurred in the heat of passion upon sudden
and sufficient provocation, then the Judge is going to tell you that you need to
find [Marrett] not guilty.” (ECF No. 10-1 at 674:4–9). Counsel proceeded to tell
the jury that:
[Y]ou have to look at all the circumstances together here.
Three impaired people drinking, using marijuana, coming
back from a strip club arguing over something that is
probably made up that didn't even happen at 3:00 o'clock
in the morning to the point they're insulting him every
which way, verbally. Physically, she is trying to jump on him
and hit him to the point that the sister gets involved. And
then she does one of the most vial things you can do to
another person. You spit on them. That is so vial.

(Id. at 674:14–25). Although the jury found Marrett guilty as charged, his counsel
was not ineffective. Having reviewed the record in full, the Court finds nothing
unreasonable with the trial court’s rejection of ineffective assistance. Wilson, 138
S. Ct. at 1192. Marrett fails to show that “counsel’s conduct fell ‘outside the wide
range of professionally competent assistance.’” Cummings, 588 F.3d at 1356. To
the contrary, his claims of ineffective assistance are belied by the record. Thus,
Marrett fails to establish deficient performance and Ground Four is denied.
Evidentiary Hearing
In a habeas corpus proceeding, the burden is 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 record refutes Marrett’s factual allegations and precludes
habeas relief. See id. Because the Court can “adequately assess [Marrett’s]
claim|s] without further factual development|,|”he is not entitled to an evidentiary
hearing. Turner v. Crosby, 339 F.3d 1247, 12775 (11th Cir. 2003).
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 Marrett makes “a
substantial showing of the denial of a constitutional right.” See 28 U.S.C.
§ 2253(c)(2). Where, as here, 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). Marrett does not
satisfy this burden, so the Court will not issue a certificate of appealability.
5. Conclusion
For the foregoing reasons, Marrett’s petition for writ of habeas corpus
under 28 U.S.C. § 2254 (ECF No. 1) is denied. A certificate of appealability is
denied. Because there are no issues with arguable merit, an appeal would not
be taken in good faith, and thus, Marrett is not entitled to appeal in forma
pauperis. The Clerk is directed to close the case.
Done and ordered, in chambers, in Miami, Florida, on December 19,

Robert N. Scola, Jr.
United States District Judge
Copies, via U.S. Mail, to
Marvin Marrett
148651
Santa Rosa Correctional Institution Annex
Inmate Mail/Parcels
9850 East Milton Road
Milton, FL 32583
PRO SE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121451. Public record. Not legal advice.