Combs v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SEAN COMBS,

Applicant,

v. CASE NO. 8:16-cv-502-T-23JSS

SECRETARY, Department of Corrections,

Respondent.

/

O R D E R

Combs applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)

and challenges his convictions for both sexual battery and burglary with an assault or

battery, for which convictions Combs is imprisoned for consecutive, ten-year

sentences. Numerous exhibits (“Respondent’s Exhibit __”) support the response.

(Doc. 17) The respondent admits the application’s timeliness (Doc. 17 at 2) and

correctly argues that some grounds are unexhausted and procedurally barred from

federal review.

I. BACKGROUND1

Combs and the victim shared a turbulent — sometimes violent — intermittent

relationship for nearly a year before they had intimate relations on June 10, 2008.

1 This summary of the facts derives from Combs’s brief on direct appeal (Respondent’s

Exhibit 8) and the state courts’ findings of fact in the post-conviction courts’ orders. (Respondent’s

Exhibits 12, 17, 18, and 25)

The post-conviction court described the events before the incident as follows

(Respondent’s Exhibit 18 at 14):

In the present case, the evidence of the Defendant’s actions in

June 2008 (frightening and chasing the victim, being chased off

by the neighbor, lurking around or attempting to break into her

apartment), the victim’s reports to law enforcement, the

issuance of a trespass warning by law enforcement, and the

Defendant’s threatening and harassing text messages to the

victim in the days leading up to the crime were relevant to

prove the material facts of the Defendant’s intent to commit the

crimes and the absence of the victim’s consent for him to enter

her property.

The victim alleged that the incident was a burglary and a rape; Combs’s defense was

that the incident was consensual.

Combs was charged with burglary with an assault or battery and sexual battery

with use of force likely to cause serious injury. A jury found Combs guilty of both

the charged burglary and the lesser included sexual battery without use of force. The

state circuit court sentenced Combs to imprisonment for consecutive terms of ten

years for both counts followed by probation for five years. The state district court

summarily affirmed the convictions and sentences. Combs v. State, 61 So. 3d 1122

(Fla. 2DCA 2011). Combs unsuccessfully challenged his convictions and sentences

in two motions under Rule 3.850, Florida Rules of Criminal Procedure, for

post-conviction relief and the subsequent appeal from each motion. Combs was

afforded an extensive evidentiary hearing on the motion for post-conviction relief,

which the state court denied with a detailed order.2 The respondent argues that some

grounds for relief in the present application are procedurally barred from federal

review because Combs never presented the claim to the state courts, because Combs

failed to assert the ground on appeal from the denial of the first Rule 3.850 motion,

or because the ground was asserted in the untimely second Rule 3.850 motion.

II. EXHAUSTION AND PROCEDURAL DEFAULT

The respondent argues that Grounds 3, 11–13, 15, and 17 are procedurally

barred from federal review, primarily because Combs failed to fully exhaust his

available state court remedies. An applicant must present each claim to a state court

before raising the claim in federal court. “[E]xhaustion of state remedies requires

that petitioners ‘fairly presen[t]’ federal claims to the state courts in order to give the

State the ‘opportunity to pass upon and correct’ alleged violations of its prisoners’

federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995), Picard v. Connor, 404 U.S.

270, 275 (1971). Accord Rose v. Lundy, 455 U.S. 509, 518S19 (1982) (“A rigorously

enforced total exhaustion rule will encourage state prisoners to seek full relief first

from the state courts, thus giving those courts the first opportunity to review all

claims of constitutional error.”).

2 The post-conviction court’s initial order is lodged as Respondent’s Exhibit 17. The post-conviction

court issued an amended order two days later, which is lodged as Respondent’s Exhibit 18. The latter order

states that the amendment corrects “footnote 43 and related attachment, and one edit on p.32 of previous Final

Order.” (Respondent’s Exhibit 18 at 1) However, the lodged copy of the amended order contains many

unexplained redactions — the redactions are not in the initial order and the reason for the redactions is not

self-evident. The copy of the amended order submitted by Combs (Exhibit A, Doc. 2) does not contain the

redactions. When quoting the post-conviction court’s order, the response sometimes inserts “[redacted]” but

other times includes the redacted material. The present order includes the material redacted in the amended

final order (Respondent’s Exhibit 18) but disclosed in the initial final order. (Respondent’s Exhibit 17)

Additionally, the present order’s quotations to the final orders omits the footnotes.

Ground 3

Combs alleges both that the prosecution violated his rights under Brady v.

Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), and

that trial counsel rendered ineffective assistance by neither conducting a sufficient

investigation nor understanding the right to confront his accuser as explained in Davis

v. Alaska, 415 U.S. 308 (1974). Combs did not assert his Brady/Giglio claim until his

second Rule 3.850 motion for post-conviction relief. (Respondent’s Exhibit 24 at

21–27) The post-conviction court ruled that the asserted claim did not qualify as

“newly discovered evidence” and rejected the claim as “both untimely and

successive.” (Respondent’s Exhibit 25 at 4) Combs’s untimely presentation of the

substantive Brady/Giglio claim to the state courts fails to meet the exhaustion

requirement. “[W]here the claim has been presented for the first and only time in a

procedural context in which its merits will not be considered [absent a special

circumstance, r]aising the claim in such a fashion does not, for the relevant purpose,

constitute ‘fair presentation.’” Castille v. Peoples, 489 U.S. 346, 351 (1989).

The respondent correctly argues that Combs never presented to the state court

the claim of ineffective assistance of counsel based on an alleged violation under

Brady/Giglio and Davis. (Doc. 17 at 10–12) In reply (Doc. 28 at 6–7), Combs argues

that the claim was addressed during the evidentiary hearing on the first Rule 3.850

motion as a part of the claim of ineffective assistance of counsel alleged in Ground 2.

Accepting his contention that he previously presented the underlying facts as part of

Ground 2, Combs did not, however, assert a claim based on a violation under

Brady/Giglio and Davis. Consequently, Combs exhausted neither the substantive

claim nor the ineffective assistance of counsel claim in Ground 3. See Brown v. Estelle,

701 F.2d 494, 495 (5th Cir. 1983) (“The exhaustion requirement is not satisfied if a

petitioner presents new legal theories or entirely new factual claims in support of the

writ before the federal court.”).

Grounds 11–13

Combs alleges that trial counsel rendered ineffective assistance (1) by not

moving for a mistrial based on a juror sleeping during the trial (Ground 11), (2) by

neither rehabilitating nor striking a biased juror (Ground 12), and (3) by not noticing

the expiration of the statutory time for a speedy trial (Ground 13). Combs asserted

each claim in his first Rule 3.850 motion. (Respondent’s Exhibit 11) The post-

conviction court (1) summarily denied Ground 11 because the allegedly sleeping

juror was an alternate and was dismissed without participating in the jury’s

deliberations (Respondent’s Exhibit 12 at 6); (2) summarily denied Ground 12 as

refuted by the record because the venireman never expressed bias toward the judge

(the venireman had treated the judge as a physical therapist) and because that judge

conducted only the jury selection and not the trial (Respondent’s Exhibit 12 at 8–9);

and (3) denied Ground 13 as refuted by the record because the trial started on the last

day of the statutory fifteen-day “recapture period” (Respondent’s Exhibit 15 at 1–2).

Combs appealed the denial of post-conviction relief but he failed to “fairly

present” these three claims to the state court by not briefing each claim in his opening

brief. In the table of contents for his opening brief Combs listed as a claim that the

trial court erred “by summarily denying grounds 1, 7, and 11 . . . without an

evidentiary hearing,” (Respondent’s Exhibit 19 at i), which are the three claims

asserted in Grounds 11–13 of the federal application. Other than being listed in the

table of contents, Combs presented to the state court no further discussion or

argument in support of these claims. Under state law simply listing a claim fails to

present the claim for appellate review, as Heath v. State, 3 So. 3d 1017, 1029 n. 8

(Fla. 2009), explains: “Heath has waived his cumulative-error claim because his

brief includes no argument whatsoever and instead consists of a one-sentence

heading in his brief.” Accord Smith v. State, 151 So. 3d 1177, 1182, n.3 (Fla. 2DCA

2014) (“[W]e hold that Smith’s assertion of ineffective assistance under this claim —

and any other claim where ineffectiveness is solely referenced in the heading — is

waived.”) (citing Heath.). Combs failed to properly exhaust his state court remedies

for Grounds 11–13.

Moreover, even if he had “fairly presented” his claim to the state courts, the

claim fails to assert the violation of a federally protected right. Combs argues that the

state post-conviction court violated state law when it denied his Rule 3.850 motion

without granting him an evidentiary hearing and without attaching portions of the

record that conclusively refute his entitlement to relief. (Doc. 19 at i) A defect in a

state collateral proceeding provides no basis for habeas relief. See Carroll v. Sec’y,

Dep’t of Cor., 574 F.3d 1354, 1365 (11th Cir. 2009) (holding that a habeas applicant’s

claim — the state court violated his due process rights when it summarily denied his

post-conviction claim without an evidentiary hearing — did not state a claim on

which a federal court may grant habeas relief); Anderson v. Sec’y for Dep’t of Corr.,

462 F.3d 1319, 1330 (11th Cir. 2006) (“We have held the state court’s failure to hold

an evidentiary hearing on a petitioner’s 3.850 motion is not a basis for federal habeas

relief.”); Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004) (“[W]hile habeas

relief is available to address defects in a criminal defendant’s conviction and

sentence, an alleged defect in a collateral proceeding does not state a basis for habeas

relief.). A challenge to a state collateral proceeding does not undermine the legality

of the detention or imprisonment — that is, the conviction itself — and thus habeas

relief is not an appropriate remedy. See Carroll, 574 F.3d at 1365; Quince, 360 F.3d at

1261–62. Furthermore, a state’s interpretation of its own laws or rules provides no

basis for federal habeas corpus relief because no question of a constitutional nature is

involved. See Carroll, 574 F.3d at 1365.

Ground 15

Combs alleges that his “Fifth, Sixth, and Fourteenth Amendment Rights as

secured by the United States Constitution” were violated because the trial court

denied the defense a continuance. Combs presented a similar claim as his first issue

on direct appeal but he presented that issue as an abuse of discretion under state law

and not as the violation of a federally protected right. The failure to alert the state

appellate court that the trial court allegedly violated a federally protected right fails to

meet the exhaustion requirement. As Baldwin v. Reese, 541 U.S. 27, 32 (2004),

explains, an applicant must alert the state court that he is raising a federal claim and

not just a state law claim.

A litigant wishing to raise a federal issue can easily indicate the

federal law basis for his claim in a state-court petition or brief,

for example, by citing in conjunction with the claim the federal

source of law on which he relies or a case deciding such a claim

on federal grounds, or by simply labeling the claim “federal.”

As a consequence, “[i]t is not enough that all the facts necessary to support the

federal claim were before the state courts, or that a somewhat similar state-law claim

was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982). See also Kelley v. Sec’y for Dep’t

of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004) (“The exhaustion doctrine requires a

habeas applicant to do more than scatter some makeshift needles in the haystack of

the state court record.”) (citations omitted); Upshaw v. Singletary, 70 F.3d 576, 578

(11th Cir. 1995) (“[T]he applicant must have fairly apprised the highest court of his

state with the appropriate jurisdiction of the federal rights which allegedly were

violated.”). An applicant must present to the state court the same claim presented to

the federal court. Picard v. Connor, 404 U.S. at 275 (“[W]e have required a state

prisoner to present the state courts with the same claim he urges upon the federal

courts.”). “Mere similarity of claims is insufficient to exhaust.” Duncan v. Henry,

513 U.S. at 366.

Ground 17

Combs alleges that “the cumulative effect of trial court and defense counsel’s

combined errors . . . prejudice[d the] defense” in violation of his “Sixth Amendment

rights.” (Doc. 1 at 74) The respondent correctly argues (Doc. 17 at 44) that Combs

failed to present to the state courts a singular claim based on the cumulative effect of

the combined errors of both the trial court and defense counsel. Although he is

correct that he presented separate cumulative effect claims on direct appeal and in the

post-conviction proceedings, Combs did not present to the state courts a cumulative

effect claim based on the combined errors of both the trial court and defense counsel.

Consequently, the combined effect claim asserted in Ground 17 is unexhausted.

* * * *

The failure to properly exhaust each available state court remedy causes a

procedural default of the unexhausted claim. O’Sullivan v. Boerckel, 526 U.S. 838, 847

(1999) (“Boerckel’s failure to present three of his federal habeas claims to the Illinois

Supreme Court in a timely fashion has resulted in a procedural default of those

claims.”). See also Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (“[W]hen

it is obvious that the unexhausted claims would be procedurally barred in state court

due to a state-law procedural default, we can forego the needless ‘judicial ping-pong’

and just treat those claims now barred by state law as no basis for federal habeas

relief.”).

As determined above, Grounds 3, 11–13, 15, and 17 are procedurally defaulted

and, as a consequence, each is barred from federal review absent a showing of

“actual cause and prejudice” or “manifest injustice.” Coleman v. Thompson, 501 U.S.

72, 29–30 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986). “Cause” must

ordinarily be something external to the defense. Marek v. Singletary, 62 F.3d 1295,

1302 (11th Cir. 1995). To show “prejudice,” the petitioner must show “not merely

that the errors at his trial created the possibility of prejudice, but that they worked to

his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.” Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991)

(emphasis original) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).

To meet the fundamental miscarriage of justice exception, Combs must show

constitutional error coupled with “new reliable evidence — whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence —

that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). This

exception is not available unless “petitioner shows, as a factual matter, that he did

not commit the crime of conviction.” Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)

(denying a certificate of probable cause).

Combs fails to establish either cause and prejudice or a fundamental

miscarriage of justice. Therefore, Grounds 3, 11–13, 15, and 17 are procedurally

barred from federal review and not entitled to a determination on the merits.

Grounds 1, 2, 4–10, 14, and 16 are entitled to a review on the merits.

III. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th

Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly

deferential standard for federal review of a state court adjudication, states in pertinent

part:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim —

(1) 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

(2) 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.

In Williams v. Taylor, 529 U.S. 362, 412S13 (2000), the Supreme Court

interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a

federal habeas court to grant a state prisoner’s application for a

writ of habeas corpus with respect to claims adjudicated on the

merits in state court. Under § 2254(d)(1), the writ may issue only

if one of the following two conditions is satisfied — the state-

court adjudication resulted in a decision that (1) “was contrary to

. . . clearly established Federal Law, as determined by the

Supreme Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal law,

as determined by the Supreme Court of the United States.” Under

the “contrary to” clause, a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that

reached by this Court on a question of law or if the state court

decides a case differently than this Court has on a set of

materially indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the writ if

the state court identifies the correct governing legal principle from

this Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for

obtaining habeas corpus from a federal court, a state prisoner must 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.” Harrington v. Richter,

562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical

point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,

and only if, it is so obvious that a clearly established rule applies to a given set of facts

that there could be no ‘fairminded disagreement’ on the question . . . .”) (citing

Richter); Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (“And an ‘unreasonable

application of’ those holdings must be objectively unreasonable, not merely wrong;

even clear error will not suffice.”) (citing Woodall, 134 S. Ct. at 1702). Accord Brown v.

Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not

the correctness per se, of the state court decision that we are to decide.”). The phrase

“clearly established Federal law” encompasses only the holdings of the United States

Supreme Court “as of the time of the relevant state-court decision.” Williams v.

Taylor, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in order

to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given

effect to the extent possible under law.” Bell v. Cone, 535 U.S. at 694. A federal court

must afford due deference to a state court’s decision. “AEDPA prevents defendants

— and federal courts — from using federal habeas corpus review as a vehicle to

second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766,

779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult

to meet,’ . . . and ‘highly deferential standard for evaluating state-court rulings, which

demands that state-court decisions be given the benefit of the doubt’ . . . .”) (citations

omitted).

When the last state court to decide a federal claim explains its decision in a

reasoned opinion, a federal habeas court reviews the specific reasons as stated in the

opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.

1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons

given by the state court and defers to those reasons if they are reasonable.”). When

the relevant state-court decision is not accompanied with reasons for the decision, the

federal court “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. The

State may contest “the presumption by showing that the unexplained affirmance

relied or most likely did rely on different grounds than the lower state court’s decision

. . . .” Wilson, 138 S. Ct. at 1192.

In a per curiam decision without a written opinion the state appellate court on

direct appeal affirmed Combs’s convictions and sentence. (Respondent’s Exhibit 10)

Similarly, in other per curiam decisions without a written opinion the state appellate

court affirmed the denial of Combs’s subsequent Rule 3.850 motions to vacate.

(Respondent’s Exhibits 22 and 27) The state appellate court’s per curiam affirmances

warrant deference under Section 2254(d)(1) because “the summary nature of a state

court’s decision does not lessen the deference that it is due.” Wright v. Moore,

278 F.3d 1245, 1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245 (2002),

cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 131 S. Ct. at

784S85 (“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.”), and Bishop v. Warden, 726 F. 3d 1243, 1255S56 (11th Cir. 2013)

(describing the difference between an “opinion” or “analysis” and a “decision” or

“ruling” and explaining that deference is accorded the state court’s “decision” or

“ruling” even absent an “opinion” or “analysis”).

As Pinholster, 563 U.S. at 181–82, explains, review of the state court decision is

limited to the record that was before the state court:

We now hold that review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim

on the merits. Section 2254(d)(1) refers, in the past tense, to a

state-court adjudication that “resulted in” a decision that was

contrary to, or “involved” an unreasonable application of,

established law. This backward-looking language requires an

examination of the state-court decision at the time it was made.

It follows that the record under review is limited to the record in

existence at that same time, i.e., the record before the state

court.

Combs bears the burden of overcoming by clear and convincing evidence a state

court’s fact determination. “[A] determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact

but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836

(11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court’s rejection of Combs’s

post-conviction claims warrants deference in this case. (Order Denying Motion for

Post-Conviction Relief, Respondent’s Exhibits 12, 17, 18 and 25) The remaining

grounds in Combs’s federal application present the same claims of ineffective

assistance of counsel that were presented to the state courts.

Trial Court Error — Ground 14

Combs alleges that the trial court violated his rights under the Confrontation

Clause, as applied by Crawford v. Washington, 541 U.S. 36 (2004), by not suppressing

“10 days worth of text messages between [the] victim and Petitioner” based on the

lack of a proper predicate through a records custodian from the telephone company.

(Doc. 1 at 71) Instead, the trial court allowed the prosecution to introduce the text

messages into evidence through the victim. Combs alleges that he was prejudiced

because the prosecutor “dedicated his entire rebuttal closing argument to reading

these texts to the jury” without requiring the prosecutor to lay a proper foundation.

(Doc. 1 at 71)

The respondent correctly argues that Crawford is inapplicable because the text

messages were not “testimonial hearsay statements.” (Doc. 17 at 38–40) Crawford,

541 U.S. at 68, identifies “testimonial” evidence as “prior testimony at a preliminary

hearing, before a grand jury, or at a former trial; and . . . police interrogations.” The

text messages (exchanges between the victim and Combs) fail to qualify as

“testimonial.”

Moreover, the declarant of some of the texts — the victim — was subjected to

cross-examination by Combs at trial; Combs was the declarant for the remainder of

the texts. As a consequence, no confrontation violation occurred by admitting the

text messages into evidence. The state court’s permitting the prosecution to introduce

the text message through the victim — without a custodian of records from the

telephone company — was neither contrary to nor an unreasonable application of

controlling law as established by the Supreme Court.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Combs claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d

1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th

Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of

counsel claim:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the

Supreme Court set forth a two-part test for analyzing ineffective

assistance of counsel claims. According to Strickland, first, the

defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant

must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent

prejudice. See Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When

applying Strickland, we are free to dispose of ineffectiveness claims on either of its two

grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual ineffectiveness

claim must judge the reasonableness of counsel’s challenged conduct on the facts of

the particular case, viewed as of the time of counsel’s conduct.” 466 U.S. at 690.

Strickland requires that “in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.”

466 U.S. at 690.

Combs must demonstrate that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” 466 U.S. at 691. To meet this burden, Combs must show “a reasonable

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

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 466 U.S. at 694.

Strickland cautions that “strategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on

investigation.” 466 U.S. at 690S91. Combs cannot meet his burden merely by

showing that the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would

have done. Nor is the test even what most good lawyers would

have done. We ask only whether some reasonable lawyer at the

trial could have acted, in the circumstances, as defense counsel

acted at trial . . . . We are not interested in grading lawyers’

performances; we are interested in whether the adversarial

process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220S21 (11th Cir. 1992). Accord Chandler v. United

States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,

in every case, could have done something more or something different. So,

omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent

or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting

Burger v. Kemp, 483 U.S. 776, 794 (1987)). The required extent of counsel’s

investigation is discussed in Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir.

2014), cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015):

[W]e have explained that “no absolute duty exists to investigate

particular facts or a certain line of defense.” Chandler, 218 F.3d

at 1317. “[C]ounsel has a duty to make reasonable investigations

or make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691,

104 S. Ct. at 2066 (emphasis added). “[C]ounsel need not

always investigate before pursuing or not pursuing a line of

defense. Investigation (even a nonexhaustive, preliminary

investigation) is not required for counsel reasonably to decline

to investigate a line of defense thoroughly.” Chandler, 218 F.3d

at 1318. “In assessing the reasonableness of an attorney’s

investigation . . . a court must consider not only the quantum of

evidence already known to counsel, but also whether the known

evidence would lead a reasonable attorney to investigate

further.” Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538.

See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty

to raise a frivolous claim).

Under 28 U.S.C. § 2254(d) Combs must prove that the state court’s decision

was “(1) . . . contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States or

(2) . . . based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Sustaining a claim of ineffective assistance

of counsel is very difficult because “[t]he standards created by Strickland and

§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is

‘doubly’ so.” Richter, 131 S. Ct. at 788. See also Pinholster, 131 S. Ct. at 1410 (An

applicant must overcome this “‘doubly deferential’ standard of Strickland and the

AEDPA.”), Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011)

(“Double deference is doubly difficult for a petitioner to overcome, and it will be a

rare case in which an ineffective assistance of counsel claim that was denied on the

merits in state court is found to merit relief in a federal habeas proceeding.”), and

Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we must

view Pooler’s ineffective counsel claim — which is governed by the deferential

Strickland test — through the lens of AEDPA deference, the resulting standard of

review is “doubly deferential.”), cert. denied, 134 S. Ct. 191 (2013).

After conducting an evidentiary hearing, the post-conviction court recognized

that Combs must prove both deficient performance and prejudice as established by

Strickland, and after determining that Combs failed to meet both requirements, the

state court denied the remaining claims of ineffective assistance of counsel.

(Respondent’s Exhibit 18 at 2–3) Because the post-conviction court correctly

recognized that Strickland governs each claim of ineffective assistance of counsel,

Combs cannot meet the “contrary to” test in Section 2254(d)(1). Combs instead must

show that the state court unreasonably applied Strickland or unreasonably determined

the facts. In determining “reasonableness,” a federal application for the writ of

habeas corpus authorizes determining only “whether the state habeas court was

objectively reasonable in its Strickland inquiry,” not an independent assessment of

whether counsel’s actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244,

n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002). The presumption of

correctness and the highly deferential standard of review requires that the analysis of

each claim begin with the state court’s analysis.

A. Claim of IAC During Pre-Trial

Ground 1

Combs alleges that trial counsel rendered ineffective assistance by “fail[ing] to

move to suppress post-Miranda statement” (Doc. 1 at 9), specifically, Combs’s

statement uttered after having invoked his Miranda rights. The morning after the

incident a detective questioned Combs about the incident, and when the detective

informed Combs about the charges, Combs invoked his right to an attorney.

Questioning ceased. At his first appearance the following day Combs signed an

“Invocation of Constitutional Rights” form. (Combs’s Exhibit 2 at 13, Doc. 25)

Later that day Combs was escorted to a small room where police officers were going

to swab his mouth for a DNA sample. Combs alleged that he was surrounded by six

officers in a small room and was told “we hope that you resist so we can slam you

and take” the DNA sample, after which Combs spontaneously admitted to having

sex with the victim. Combs claims that he uttered the statement in fear of physical

harm.

The post-conviction court rejected Combs’s claim as follows (Respondent’s

Exhibit 18 at 31–32):

The statement testimony that the Defendant challenges is

Det. Emilius’s testimony that on June 11, 2008, when she

met with the Defendant in order to take a buccal swab for

DNA testing, he said “I’m not denying I had sex with her.

She let me in. I would have given you this yesterday, if you

asked me.” At the time of the Defendant’s statements, the

Defendant had invoked his right to counsel. At the

evidentiary hearing, trial counsel testified that he did not

consider filing a motion to suppress this statement because

it supported the defense theory of the case that consensual

sex occurred and because the statement appeared to be a

spontaneous statement made during the execution of a

search warrant which was not unconstitutional.

The Court finds that, upon review of the trial record, trial

counsels’ decision to not seek to have the statement

excluded supported the overall defense at the trial, and as a

result, it was a reasonable trial strategy. Trial counsel were

not ineffective for failing to file a motion to suppress . . .

the statement of the Defendant . . . .

The post-conviction court ruled both that trial counsel’s choice of a defense

based on consent was a reasonable trial strategy, not deficient performance, and that

the statement supported the chosen defense. The state court’s ruling is neither

contrary to nor an unreasonable application of controlling law. Roe v. Flores-Ortega,

528 U.S. 470, 481 (2000) (“The relevant question is not whether counsel’s choices

were strategic, but whether they were reasonable.”). See Strickland, 466 U.S. 690

(“[S]trategic choices . . . are virtually unchallengeable.”). Counsel’s reliance on a

particular defense is “a matter of strategy and is not ineffective unless the petitioner

can prove the chosen course, in itself, was unreasonable.” Chandler v. United States,

218 F.3d 1305, 1318 (11th Cir. 2000) (citing Strickland for proposition that no set of

detailed rules for counsel’s conduct should be used to evaluate ineffectiveness claims).

“In order to show that an attorney’s strategic choice was unreasonable, a petitioner

must establish that no competent counsel would have made such a choice.”

Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998). In determining

“reasonableness,” a federal petition for the writ of habeas corpus authorizes

determining only “whether the state habeas court was objectively reasonable in its

Strickland inquiry,” not an independent assessment of whether counsel’s actions were

reasonable. Putnam v. Head, 268 F.3d at 1244, n.17. Combs fails to show that the

post-conviction court’s ruling is an objectively unreasonable application of Strickland.

B. Claims of IAC During the Prosecution’s Case

Ground 2

Combs alleges that trial counsel rendered ineffective assistance by “fail[ing] to

impeach the star witness,” that is, the victim. (Doc. 1 at 13) Combs lists eleven

examples of missed opportunities to impeach the victim on cross-examination.

(Doc. 1 at 14–15) The post-conviction court rejected Combs’s claim as follows

(Respondent’s Exhibit 18 at 9–11):

The Defendant also alleges that his trial counsel was ineffective

for failing to impeach the victim, whose testimony at trial was

inconsistent with her previous sworn statements and statements

to investigators. The Defendant further contends that after the

Court addressed the problem of improper impeachment with

trial counsel during a bench conference, counsel made no

further attempt to impeach the witness. The Defendant’s

motion claims the victim made various inconsistent statements

between her initial police report, her deposition testimony and

her trial testimony, including that the Defendant threatened to

kill her horses, that he was homeless, that she did not call him

in May 2008, that her facial injuries were the result of his

beating her, that the Defendant destroyed her own window

blinds in a rage, and that she may have left her front door

unlocked.

Trial counsel did address many of these inconsistencies in the

victim’s testimony during cross examination: the length of time

since the couple had been dating, her injuries due to a fall in the

barn, the threats against her horses, the Defendant’s

homelessness, and the damage to the blinds. The record also

shows that trial counsel challenged the victim’s credibility due

to her inconsistent statements on topics which are not

mentioned as part of this ground. To the extent that the victim

made inconsistent statements, trial counsel rendered reasonably

competent performance in his efforts to present these

inconsistencies to the jury for the purpose of undermining her

credibility as a witness.

To the claims that trial counsel lacks the skill necessary to

impeach the victim witness because there were objections by the

State during the trial, counsel testified at the hearing that,

although he “could have more clearly laid the proper

foundation to impeach a witness,” he did elicit the responses

necessary to the defense strategy of undermining her credibility.

He further testified that his decision not to call [certain

identified witnesses] or any other impeachment witnesses was

based solely on his trial strategy, not on admonishments by the

Court for improper impeachment.

While the Defendant argues that these inconsistencies in the

victim’s statements . . . are critical because he believes the case

comes down to a “credibility contest” between him and the

victim, the evidence was not solely limited to these

inconsistencies, and there was other evidence to support the

jury verdict, notably: testimony from other witnesses, such as

neighbors, law enforcement officers, and medical personnel

who, while they were not eyewitnesses to the crime, testified to

relevant and material facts. Upon review of all the testimony at

the evidentiary hearing along with the trial record, the Court

finds that trial counsel’s testimony that the decision to not call

these witnesses was a strategic decision is credible, and that it

was a reasonably competent decision. Equally important,

counsel did bring forth evidence of the victim’s inconsistent

statements at trial, and as a result, the Defendant was not

prejudiced.

The post-conviction court ruled that trial counsel’s manner of impeaching the

victim was a reasonable trial strategy and not deficient performance. The state

court’s ruling that counsel’s strategy was reasonable is neither contrary to nor an

unreasonable application of controlling law. Strickland, 466 U.S. at 688 (ruling that a

defendant must show that counsel’s representation fell below an objective standard of

reasonableness); Flores-Ortega, 528 U.S. at 481 (“The relevant question is not

whether counsel’s choices were strategic, but whether they were reasonable.”).

Combs fails to show that the post-conviction court’s ruling is an objectively

unreasonable application of Strickland.

Ground 4

Combs combines the claims he alleged in grounds four and fourteen in the

post-conviction proceedings. From his ground four in the state proceeding, Combs

alleges that trial counsel rendered ineffective assistance by “misrepresenting DNA

test results to petitioner and [the] jury, [and] falsely informing [the] jury that DNA

proved elements of the crime charged.” (Doc. 1 at 24) Although not identified in the

statement of the claim, within the body of this ground Combs complains that his

testifying required the disclosure of his prior felony convictions, which “was quite

damaging to petitioner’s credibility in the minds of the jury.” (Doc. 1 at 27) The

post-conviction court rejected these claims as follows (Respondent’s Exhibit 18 at

16–20):

The Defendant alleges that prior to trial, counsel told him that

the FDLE lab results showed that his semen was found to be

present in vaginal, anal, and facial swabs from the victim taken

as part of the investigation, information which the Defendant

claims was inaccurate. The Defendant also claims that his

attorney informed him that he must testify at trial to the fact

that the sex between the parties on June 10, 2008, was

consensual. He also argues that the decision to testify subjected

him to a damaging cross examination, which elicited further

admissions. The Defendant further alleges that counsel

stipulated to the facts of DNA evidence in front of the jury in

his closing argument and that he made negative statements

about the elicited damaging testimony during the direct

examination of the Defendant.

. . . .

First, although the Defendant claims that DNA evidence was

misrepresented, there was DNA evidence in this trial that

connected him to the crime. During the trial, the potential

DNA evidence was first mentioned during the State’s opening,

when the State presented that it would prove that there was a

positive DNA match between the Defendant and a swab of

ejaculate from the victim’s face. The State then introduced

evidence that the FDLE received five samples of evidence from

the victim to be tested for DNA . . . as well as two buccal swabs

represented as being from the Defendant. The FDLE tested the

swabs from the cheeks of the victim and the two buccal swabs

from the Defendant and found that the Defendant’s DNA

matched the profile of the foreign contributor to the cheek swab

sample.

Second, the FDLE reports admitted into evidence at the hearing

support a DNA connection to the Defendant. The first FDLE

report . . . states that “semen was identified on the underwear,

the vaginal swabs, the anal swabs, and the cheek swabs.” There

was trial testimony from [the emergency room nurse] that the

victim informed her that the Defendant had ejaculated on her

face. The second FDLE report . . . describes the results of the

DNA testing, and it found that there was DNA match for the

Defendant on the cheek swab. The report also states that the

DNA profile from the vaginal swab was a mixture, and the

foreign contributor to the DNA was not conclusively

determined. No DNA analysis was performed on the other

samples. While there was no evidence of semen on the cheek

swab brought forth during the trial, trial counsel’s statement

about a DNA connection to semen found on the victim’s cheek

was not contrary to the evidence overall in this case.

Third, at the trial, the Defendant affirmed that he was aware of

the risks of testifying, including that he would be subject to

examination and cross-examination and that if he had prior

felony convictions or prior convictions for crimes involving

dishonesty that that information could be presented to the jury.

He also testified that he understood that it was his own decision

to testify.

At the evidentiary hearing, trial counsel testified that he recalled

the Defendant receiving a copy of the FDLE report prior to trial

because the Defendant noted the inconsistencies in how his

name is written on the report. In addition, trial counsel also

testified that the Defendant was “emphatic” from the beginning

that he wanted to testify on his own behalf, and that he

customarily explains the advantages and disadvantages of

testifying to all his clients, although he did not specifically recall

having this conversation with the Defendant. Trial counsel

stated that he agreed with the Defendant’s decision to testify,

and he thought that the benefits outweighed the risks. Stephen

Watson, from the Office of the Public Defender, testified at the

hearing that he spoke with the Defendant just prior to his trial

and they discussed that if the defense of consent were to be

raised at this trial, the Defendant would have to testify, and that

the Defendant did not say that he did not want to testify.

Finally, the Defendant admitted to law enforcement that he had

sex with the victim on the night in question, and his testimony

at trial was that he had vaginal, anal, and oral intercourse with

the victim. Trial counsel testified that the Defendant’s version

of events in preparation for the trial was that the sex was

consensual. The State provided pretrial letters from the

Defendant to his trial counsel that showed that the Defendant

believed that he was wrongly accused of burglary and rape after

a night of consensual sex with the victim. The Court finds trial

counsel’s testimony that the defense theory in this case relied

upon the Defendant’s version of events to be credible. There

was no testimony adduced at the hearing, or assertion in the

Defendant’s motion, that the facts of this case are such that one

DNA sample having been found to contain a mixture of donors

was to be likely exculpatory evidence, or that any other defense

(e.g., misidentification) which could have been supported by

such a finding was ever contemplated. The Defendant’s

evidentiary hearing testimony that he would not have testified

at trial had he known that only the cheek swab from the victim

DNA evidence only demonstrated a connection to him . . . is

self-serving and not credible, based upon his pretrial admissions

to intercourse with the victim and his detailed testimony during

the trial to a number of sexual contacts with the victim on the

night of the crime.

Therefore, the Court finds that the Defendant’s trial counsel did

not render ineffective assistance of counsel by misrepresenting

DNA evidence at trial or that the representation caused the

Defendant to testify. The Court finds that the defense counsel

made a reasonably competent decision to pursue a defense,

based upon the Defendant’s own admissions, that the

Defendant was falsely accused of sexual battery after a

consensual sexual encounter. The Defendant was apprised of

the risks of testifying, and he made a knowing and voluntary

decision to do so. The Defendant was not prejudiced at trial on

account of counsel’s representations because he admitted to sex

with the victim and there was DNA evidence to substantiate

that the sex occurred . . . .

From his ground fourteen in the state proceeding, Combs alleges that trial

counsel rendered ineffective assistance by “stipulating to foreign DNA.” The

post-conviction court rejected this claim as follows (Respondent’s Exhibit 18

at 32–34):

The Defendant alleges that his trial counsel was ineffective for

stipulating at a pretrial hearing on December 5, 2008, that the

DNA evidence collected in the case was a match to the

Defendant. He argues that trial counsel misled him about the

DNA evidence and that he made factual concessions to the jury

during closing, and that this misinformation unreasonably

established his responsibility for the crime.

. . . .

Because any misrepresentation regarding DNA or other

forensic evidence was consistent with the defense theory that

the Defendant was invited into the victim’s residence where

only consensual sex occurred, and the Defendant’s own

testimony admitted to these same acts, the Defendant was not

prejudiced by defense counsel’s statements during closing that

DNA connected the Defendant to the victim in these ways.

First, the transcript of the December pre-trial hearing shows that defense

counsel and the prosecutor were discussing the possibility of a stipulation — “There’s

been talk that we’ll stipulate to DNA” (Respondent’s Exhibit 32 at 235) — but not

that the attorney’s reached a stipulation.

Combs admitted to having sex with the victim in several ways on the night of

the incident; the only question was whether the sex was consensual. As a

consequence and because neither the quantity of DNA nor the locations from where

the DNA was recovered nor the possible presence of DNA from someone other than

Combs was material to whether the victim had consented, the post-conviction court

correctly rejected Combs’s claim that trial counsel rendered ineffective assistance.

Combs fails to show that the post-conviction court’s ruling is an objectively

unreasonable application of Strickland.

Ground 6

Combs alleges that trial counsel rendered ineffective assistance by taking “an

adversarial position against his client.” (Doc. 1 at 35) Combs alleges that

“[t]hroughout the course of the trial, [defense counsel] made a number of

outrageously negative and damaging comments about Mr. Combs and his alleged

actions that can only be construed as attempts to assassinate Petitioner’s character

and take [an] adversarial position against Mr. Combs.” (Doc. 1 at 36) The

post-conviction court rejected this claim as follows (Respondent’s Exhibit 18

at 28–29):

The Defendant argues that his counsel was ineffective because

counsel took a position that was adversarial to the Defendant’s

and which contributed to the conviction in this case. The

Defendant cites numerous actions of his attorneys as support:

(1) mentioning that anal sex was an aspect of the case to

prospective jurors during voir dire, (2) expressing a prejudicial

personal opinion of the Defendant during opening and closing

arguments, (3) failure to object to the introduction of evidence

that a rape kit was taken, (4) failure to object to the testimony

from a witness that there were conclusive results from the anal

swab, or to clarify the outcome of forensic testing to the jury,

(5) conceding during [trial] that the DNA evidence matched,

(6) improper cross examination of witness Michelle Mullins,

and (7) improper direct examination of the Defendant.

Where a trial attorney cross examines witnesses, presents a case

and does not concede the defendant’s guilt, meaningful

adversarial testing of the case has been found. The trial record

shows that trial counsel did work on the Defendant’s behalf to

ensure that the State’s evidence was tested, including cross

examination of witnesses, presentation of evidence, moving for

a judgment of acquittal, making numerous objections, and

making a lengthy and detailed closing argument. As a result,

the Court finds that meaningful adversarial testing of the case

occurred, and that trial counsel did not render ineffective

assistance.

The post-conviction court ruled that counsel’s performance was not deficient

because, contrary to Combs’s assertion that defense counsel advocated against his

client, defense counsel provided “meaningful adversarial testing” of the state’s case.

Counsel’s decision to cross-examine and his manner of cross-examining are strategic

decisions entitled to deference. Dorsey v. Chapman, 262 F.3d 1181, 1185–86 (11th Cir.

2001), cert. denied, 535 U.S. 1000 (2002). Defense counsel’s decision to disclose

during voir dire that the incident involved anal sex was reasonable to assess each

possible juror’s reaction.3 In his closing comments defense counsel characterized

anal sex as “really repulsive.” (Respondent’s Exhibit 4 at 461) Counsel testified at

the evidentiary hearing during the post-conviction proceeding that this trial strategy

was to “lessen the blow to the jury.” (Respondent’s Exhibit 16 at 127) Combs fails

to show that the post-conviction court’s deferring to trial counsel’s reasonable trial

strategy is an objectively unreasonable application of Strickland. See Minton v. Sec’y,

Dep’t of Corr., 271 Fed. App’x 916, 918 (11th Cir. 2008) (“The Supreme Court has

‘declined to articulate specific guidelines for appropriate attorney conduct and instead

has emphasized that the proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.’”) (quoting Wiggins v. Smith,

539 U.S. 510, 521 (2003)).

Ground 10

Combs alleges that trial counsel rendered ineffective assistance by “fail[ing] to

object to the introduction of other uncharged bad acts. “ (Doc. 1 at 58) The

post-conviction court rejected this claim as follows (Respondent’s Exhibit 18

at 12–16):

The Defendant alleges that trial counsel was ineffective for

failing to object to the following evidence on the basis that it

was “Williams Rule” evidence:

a) an encounter between the Defendant and the

victim on June 7, 2008, which occurred while the

3 As the post-conviction court stated (Respondent’s Exhibit 18 at 33), “During the trial the Defendant

testified that he and the victim engaged in vaginal and anal sex and that vaginal and oral sex followed.”

victim was riding her bicycle, after which law

enforcement was called

b) the victim’s report that later on June 7, 2008,

she saw the Defendant attempting to break into

her apartment, after which she fled the area and

called law enforcement

c) text messages sent between the Defendant and

the victim between June 1 and June 9, 2008

d) evidence of a police report on May 6, 2008

e) evidence of threats made by the Defendant to

the victim on May 8, 2008.

The Defendant argues that the State did not file notice of

similar fact evidence, pursuant to section 90.404, Florida

Statutes (2008), and this failure of notice was not objected to by

trial counsel. The Defendant also asserts that this improper

evidence was admitted without objection by defense counsel

when it came in under testimony from the victim, Morris

Holland, Deputy Gallof, and the Defendant himself, and that

had a timely objection been entered, the Court would have

performed the balancing test required under section 90.403,

Florida Statutes (2008), and found the evidence to be

inadmissible.

As an initial matter, the door was opened to the police report on

May 6, 2008, by the defense when Dep. Tristchler was called as

a witness for the purpose of showing that [the] victim

exaggerated, that she made inconsistent statements to law

enforcement, and that she would take advantage of an

opportunity to put the Defendant in a negative light. . . .

At the trial, the victim testified, over defense objection, to

threats the Defendant made to her life on May 8, 2008,

explaining that she did not follow through on prosecutions for

earlier incidences of violence by the Defendant because she

believed his threats [not] to be serious. She also testified, over

defense objection, that on June 7, 2008, three days prior to the

crime, she encountered the Defendant while riding her bicycle.

He frightened her, so she rode away quickly, and he pursued

her on his bicycle. She took refuge at the neighbor’s house, the

neighbor chased the Defendant away, and the police were

summoned. That same day, the victim spotted the Defendant

“trying to break into my house or looking in the windows,” and

the police were again summoned. No arrest was made, but law

enforcement issued the Defendant a trespass warning. The

victim testified that she never withdrew the warning. She

further testified, again over defense objections, that text

messages were sent between the victim and the Defendant in

which she told him not to contact her because he had

threatened to kill her. Her neighbor, Morris Holland,

corroborated her version of events, and Dep. Gallof from the

Sarasota County Sheriffs Office testified that she responded to

the victim’s home on June 7, where she spoke to the Defendant

by phone to advise him to stop harassing the victim with phone

calls and texts. When she spoke to him, he told her that the

victim “had been unfaithful to him and he wanted to cause her

some emotional pain.”

Under section 90.402, Florida Statutes, “[a]ll relevant evidence

is admissible, except as provided by law.” Evidence of

inextricably intertwined facts “is admissible under section

90.402 because it is a relevant and inseparable part of the act

which is in issue. It is necessary to admit the evidence to

adequately describe the deed.” . . . Because inextricably

intertwined evidence is not admitted under the Williams Rule,

the notice requirement of section 90.404, Florida Statutes

(2008), does not apply.

In the present case, the evidence of the Defendant’s actions in

June 2008 (frightening and chasing the victim, being chased off

by the neighbor, lurking around or attempting to break into her

apartment), the victim’s reports to law enforcement, the

issuance of a trespass warning by law enforcement, and the

Defendant’s threatening and harassing text messages to the

victim in the days leading up to the crime were relevant to

prove the material facts of the Defendant’s intent to commit the

crimes and the absence of the victim’s consent for him to enter

her property. The acts were also inextricably intertwined with

the crime because they establish the context out of which the

criminal acts arose and described the pattern of violent and

threatening events leading up to the crime. As a result, the

evidence was admissible and defense counsel were not

ineffective for failing to object to its introduction on the basis of

the Williams rule. Moreover, defense counsel did enter

numerous objections to the entry of this evidence on other

grounds.

The Defendant argues that even if this evidence was relevant, it

was prejudicial. . . . The evidence of the events leading up the

crime was relevant, and it did not outweigh the probative value

of explaining the context in which the crimes arose. It was

neither unfair nor did its prejudicial nature outweigh its

probative value because the content was not overly emotional

or so sensational as to inflame the jury or to improperly appeal

to their emotions. Because the evidence was admissible, trial

counsel were not ineffective for failing to prevent its admission.

To the extent that the evidence was objectionable on other

grounds, trial counsel did timely enter objections.

The victim testified that prior to June 10, 2008, the Defendant

had been violent to her about three or four times, and she had

reported only some of those to law enforcement. She also

testified that she did not follow through on the prosecutions for

those acts of violence because either she was trying to forgive

him or she was afraid because he had threatened to “hunt” and

kill her if she got him in trouble. These previous acts of violence

prior to June 10, 2008, including the May 8, 2008, threats,

which were not reported to law enforcement are also relevant

and inextricably intertwined with the events of June 10, 2008,

because these details of the pattern of threats and violence put

the crime and the events leading up to it in context, specifically

the absence of the victim’s consent either for him to enter her

property or to engage in sexual intercourse. This testimony also

served to explain, in part, the intermittent nature of their

relationship, which [was] an issue during the trial because of the

defense theory that the sex was consensual and that he was

falsely accused by the victim.

Because the evidence of the events between June 1 and the

crime, and the other previously unreported acts of violence

between the Defendant and the victim, were admissible at trial,

defense counsel were not ineffective for failing to have objected

to them.

The post-conviction court determined that Combs proved neither deficient

performance nor prejudice because the evidence not challenged by counsel was

admissible under state law. Federal habeas corpus relief is generally not available for

an error of state law. Pulley v. Harris, 465 U.S. 37 (1984); Wainwright v. Goode, 464

U.S. 78 (1983). “Nor do our habeas powers allow us to reverse [a] conviction based

on a belief that the trial judge incorrectly interpreted the” state’s evidence rules.

Estelle v. McGuire, 502 U.S. 62, 75 (1991). Combs fails to show that the post-

conviction court’s ruling is an objectively unreasonable application of Strickland.

Because an objection would have been unsuccessful, Combs cannot show that he was

prejudiced by the absence of an objection.

Ground 16

Combs alleges that trial counsel rendered ineffective assistance by “fail[ing] to

argue a legally correct judgment of acquittal.” (Doc. 1 at 73) The post-conviction

court rejected this claim as follows (Respondent’s Exhibit 18 at 29–30):

The Defendant argues that counsel made an insufficient motion

for judgment of acquittal because the motion mistakenly relied

upon the argument that no forced entry occurred and that

forced entry is an element of the crime of burglary, because his

trial counsel did not understand the law.

A motion for judgment of acquittal tests the sufficiency of the

State’s evidence. “The trial court should not grant a motion for

judgment of acquittal unless there is no view of the evidence

which the jury might take favorable to the opposite party that

can be sustained under the law.” “Generally, in order to prove

burglary of a dwelling, there must be evidence to support a

finding that the defendant entered or remained in a dwelling

with the intent to commit an offense therein.” Consent to enter

is an affirmative defense to burglary.

At the trial, defense counsel argued that a motion for judgment

of acquittal should be granted because there was insufficient

evidence of burglary because the State did not put on evidence

of a forced entry into the residence. At the time trial counsel

argued the motion, the only evidence to support the defense of

consent to enter — the testimony of the Defendant — had not

yet been presented. The Court ruled that the victim’s testimony

that she did not consent was sufficient evidence to support the

charge and denied the motion. After the close of the defense

case, trial counsel’s motion was renewed and denied without

argument. The rulings were preserved for appeal and affirmed.

While a truly “boilerplate” motion for judgment of acquittal

could support a post-conviction ground for relief, here, trial

counsel set forth the evidentiary ground under which he

believed the State’s case failed. The trial record supports that

even though there was conflicting testimony regarding whether

the victim consented to the Defendant entering her home, the

State put forth sufficient evidence for the case to go to the jury.

The Court ruled on this sufficiency at the time the first motion

for judgment of acquittal was made. Even if trial counsel were

mistaken in regard to the law, the Court would still have found

that sufficient evidence existed to allow the case to proceed to

the jury. Therefore, the Court finds that the Defendant’s trial

counsel did not render ineffective assistance by making only a

boilerplate motion for judgment of acquittal . . . .

The post-conviction court ruled both that counsel did not perform deficiently

and that, even if counsel’s performance was deficient, Combs proved no prejudice

because the trial court would have rejected the arguments Combs contends trial

counsel should have presented. Combs disagrees with the post-conviction court’s

assessment, arguing instead that he “may very well have prevailed on a more artfully

presented motion for JOA.” (Doc. 1 at 74) Combs’s speculation that a “more

artfully” argued motion might have prevailed fails to meet Combs’s burden of

showing that the post-conviction court’s ruling is an objectively unreasonable

application of Strickland.

C. Claims of IAC During the Defense’s Case

Ground 7

Combs alleges that trial counsel rendered ineffective assistance by presenting a

law enforcement officer as a defense witness “to testify about a prior report of

violence made by [the victim] against petitioner.” (Doc. 1 at 42) The post-conviction

court rejected this claim as follows (Respondent’s Exhibit 18 at 20–21):

The Defendant alleges ineffective assistance of counsel for

introducing prior bad act evidence, specifically the victim’s

May 6, 2008, report to law enforcement of an alleged May 4,

2008, attack by the Defendant. The Defendant claims that

because the defense listed Deputy Tritschler as a witness, the

door was opened to these events and other similar events being

introduced into evidence. The Defendant claims that “nothing

in Dep. Tritschler’s testimony could be construed as useful to

Defendant,” and that the testimony regarding the May 6 report

was otherwise objectionable as either inadmissible hearsay or

irrelevant.

At the trial, defense counsel called Dep. Tritschler and

questioned her about the victim’s May 6, 2008, report to law

enforcement that the Defendant battered her and threatened to

kill both her and the horses. At the evidentiary hearing, trial

counsel testified that he called Dep. Tritschler for the purpose of

having a law enforcement officer’s testimony to support “the

strategy of [the victim’s] exaggeration and taking advantage of a

situation to try to make Mr. Combs look bad” and to help show

that this was a “tumultuous, volatile relationship.” Trial counsel

stated that, even though the victim admitted that she lied about

threats against the horses, he wanted to show that the victim

had previously lied to law enforcement. He testified that calling

this witness and bringing the evidence of the May 6, 2008,

report was a strategic decision that was entered into after “a lot

of thought” and that he thought it was the right thing to do. He

also testified that it was originally the Defendant’s idea to list

the deputy as a witness.

Although this witness ultimately provided some testimony

which did not support the Defendant’s case, the Court finds

defense counsel’s strategy of undermining the credibility of the

victim’s testimony by providing evidence of her inconsistent

statements and of showing that the victim and the Defendant

were in the midst of a turbulent relationship in which the victim

used reports to law enforcement to harm the Defendant to be a

reasonable trial strategy, and trial counsel were not ineffective

for having called her as a witness.

The post-conviction court determined that trial counsel’s strategy of using the

law enforcement officer’s testimony to undermine the victim’s credibility was a

reasonable trial strategy. The state court’s ruling that counsel’s strategy was

reasonable is neither contrary to nor an unreasonable application of controlling law.

Strickland, 466 U.S. at 688 (ruling that a defendant must show that counsel’s

representation fell below an objective standard of reasonableness); Flores-Ortega,

528 U.S. at 481 (“The relevant question is not whether counsel’s choices were

strategic, but whether they were reasonable.”). See also Chandler v. United States,

218 F.3d at 1318 (recognizing that counsel’s reliance on a particular defense is “a

matter of strategy and is not ineffective unless the petitioner can prove the chosen

course, in itself, was unreasonable.”); Provenzano v. Singletary, 148 F.3d at 1332 (“In

order to show that an attorney’s strategic choice was unreasonable, a petitioner must

establish that no competent counsel would have made such a choice.”). Combs fails

to show that the post-conviction court’s ruling is an objectively unreasonable

application of Strickland.

Ground 9

Combs alleges that trial counsel rendered ineffective assistance by “fail[ing] to

utilize impeachment evidence of which he was unaware he had in his possession at

the time of trial.” (Doc. 1 at 52) The evidence was telephone records that showed

frequent contact between Combs and the victim, contacts that were initiated by both

parties. The post-conviction court rejected this claim as follows (Respondent’s

Exhibit 18 at 21–23):

The Defendant alleges that although evidence of numerous calls

and text messages was introduced at trial for the purpose of

showing conflict between the Defendant and the victim and his

threats toward her, trial counsel introduced no rebuttal evidence

to show that the relationship was improving on June 8th, and

that on June 9th, just prior to the crimes, the Defendant sent a

text message indicating that he only wanted to talk to the

victim. He contends that this evidence would demonstrate his

intent only to talk. In addition, the Defendant alleges that he

told his attorney that he had a different phone number prior to

June 1, 2008, and that he asked his attorney to retrieve the call

records and text messages from the number in order to obtain

rebuttal evidence of the nature of relationship between the

victim and the Defendant

First, at the evidentiary hearing, trial counsel testified that he

did not want to submit phone records from a second phone at

trial because he thought that they were not relevant to the case.

He also reported that the evidence the messages were purported

to show was the on-again-off-again nature of the relationship,

and that evidence would have been cumulative to the victim’s

admission to that fact. Also, prior to trial, the Defendant told

trial counsel not to pursue obtaining the previous phone’s

records and a letter was put into evidence to support this claim.

Counsel testified that the Defendant’s request was one of the

reasons he no longer sought to obtain that phone.

Second, at the trial, a report of text messages to and from the

victim’s phone were entered into evidence, and the report

included texts from the 544-0652 number which the Defendant

argues should have been entered into evidence by his trial

counsel. The evidence included the June 9, 2008, 10:47 p.m.

text message from the Defendant’s 822-2006 number to the

victim asking, “Will u talk 4 a sec?” The report appears to show

all the messages to the victim’s phone, even those from phone

numbers other than 822-2006, and the above message from

822-2006 is the last one before the crime. The Defendant

testified as to this message as well as his intent to visit the

victim to talk during his testimony. The message asking the

victim to talk was even referenced in the State’s closing

argument. The trial record also shows that trial counsel asked

the Defendant about the June 8 text message, but the Defendant

failed to remember that he had sent that message. Even if trial

counsel ha[d] obtained the second phone, the second phone text

message evidence would have been cumulative to the June call

records admitted by the State at trial.

The Defendant’s claims are also refuted by the record because

the message from the Defendant asking to talk, as well as a

complete set of messages to the victim’s phone, were admitted

and testified to at trial, and defense counsel questioned him

about the June 8 and June 9 messages during direct

examination. In addition, the Court finds that trial counsels’

strategy of not admitting this rebuttal evidence because it was

cumulative evidence to be a reasonable trial strategy.

The post-conviction court ruled that trial counsel’s not using the additional

telephone records — to the extent that additional records were not admitted into

evidence — was a reasonable trial strategy and not deficient performance. The state

court’s ruling is neither contrary to nor an unreasonable application of controlling

law. Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.”). Also, the state court correctly deferred to trial

counsel’s relying on Combs’s directive to not further pursue the records. See Michael

v. Crosby, 430 F.3d 1310, 1321 (11th Cir. 2005) (“[E]vidence of a petitioner’s

statements and acts in dealing with counsel is highly relevant to ineffective assistance

claims.”), cert. denied, 547 U.S. 1133 (2006). Combs fails to show that the post-

conviction court’s ruling is an objectively unreasonable application of Strickland.

D. Claims of IAC During Closings

Ground 8

Combs alleges that trial counsel rendered ineffective assistance by not

“object[ing] to [the] prosecutor’s improper comments and misconduct” during

closing arguments. (Doc. 1 at 46) Combs identifies statements during the

prosecutor’s closing that he contends counsel’s failure to object was ineffective

assistance. The post-conviction court rejected this claim as follows (Respondent’s

Exhibit 18 at 25–28):

The Defendant asserts that the State attorney made numerous

improper comments during his closing argument to which trial

counsel made no objection. First, the Defendant argues that the

State attorney argued several facts not in evidence:

a) that the State’s witness Susan Tuttle testified

that the “bedroom door was not damaged two

days prior.” The Defendant argues that the

witness testified that she “did not notice the

door.”

b) that the State’s witness DNA expert Mullins

testified that the Defendant’s semen was on the

victim’s face. The Defendant argues that the

witness never used the word “semen” in her

testimony.

c) that the Defendant admitted punching the

victim in the face with a closed fist and that the

Defendant took her purse. The Defendant argues

that he never testified to these facts.

d) that State’s witness Dr. Federer testified that

absence of gynecological injury is not unusual in

sexual battery and that such an absence is not an

indication that the sex was consensual. The

Defendant argues that the witness never testified

to such facts.

Second, the Defendant alleges that the State attorney bolstered

the credibility of the victim during closing arguments by telling

the jury that the victim was being “completely honest with

you,” and that the she lacked an interest in the outcome of the

case, arguing that such statements are outside the law. Third,

the Defendant claims that the State attorney shifted the burden

of proof when he argued that no reason had been given for why

the victim would lie under oath because such an argument

implies that the Defendant had to prove that the witness had a

motive to perjure herself. Fourth, the Defendant claims that

when State attorney argued “for once during his testimony, he

was being honest” that this statement was a personal

commentary on the Defendant’s credibility. The Defendant

contends that had trial counsel made objection to any of these

allegedly improper statements during closing argument and

moved for a new trial, the Court would have granted the

motion. He also argues that because counsel did not object, the

case was not subjected to adversarial testing.

Wide latitude is afforded to counsel in closing arguments.

Counsel’s role in closing argument is to assist the jury in

analyzing the evidence, and “[l]ogical inferences may be drawn,

and counsel is allowed to advance all legitimate arguments.” As

the Third District Court of Appeal pointed out in Anderson v.

State, “opinions by experienced trial lawyers differ widely as to

whether it is wise to object and move for a mistrial in the midst

of a prosecuting attorney’s argument to the jury. Some advise

against it, or suggest it be used sparingly, as they feel such

objections tend to antagonize the judge or jury thus

jeopardizing future court rulings or a favorable verdict.”

Furthermore, “[f]or improper argument to require a mistrial,

the comments must deprive the defendant of a fair and

impartial trial, materially contribute to the conviction, be so

harmful or fundamentally tainted as to require a new trial, or be

so inflammatory that they might have influenced the jury to

reach a more severe verdict than . . . it would have otherwise.”

As to the prosecutor’s comment that “for once during his

testimony, he was being honest,” this comment was not

objectionable because the prosecutor was at that time reviewing

the Defendant’s testimony and pointing out what did and did

not fit with the other evidence in the case. He did not

improperly shift the burden in this case because the prosecutor

was simply stating in his closing that either the Defendant was

being truthful or that the jury should compare his statements to

other evidence they had before them in this case. There also

was no improper shift in the burden when the prosecutor said

that there was no reason put forward to show why the victim

would have lied at trial because in that section of the closing,

the prosecutor was discussing comparative credibility of the

Defendant and the victim, and he was rebutting the defense

closing in which set forth the victim’s motives for fabrication in

support of his discussion of how the physical evidence better fit

the Defendant’s version of events.

None of the remaining claims [of] ineffective assistance of

counsel for failure to object to improper conduct on the part of

the prosecutor is found to have prejudiced the Defendant at the

trial. As to the claims of facts not in evidence, the prosecutor’s

statements regarding Dr. Federer were a reasonable inference of

the trial testimony. Although the doctor did not testify as to

whether the injuries were “unusual,” she testified to her belief

that non-consensual sex would not necessarily have to result in

visible injuries. The statements that the Defendant punched the

victim were also a reasonable inference from the fact that the

Defendant admitted to hitting the victim and that he physically

demonstrated how he hit her with a closed fist. As to the

testimony of [the victim,] the prosecutor did misstate the

evidence when he stated that the witness noted that the interior

door in the residence was not damaged, but this statement was

not so improper as to cause the trial to be unfair and require

defense counsel to object because the detail was only minor as

compared to the evidence overall. As to the statement about the

Defendant taking the victim’s purse, that statement was made

in the context of a list of crimes that the Defendant is alleged to

have committed while inside the residence, and this mistaken

comment was not overly prejudicial because there was evidence

of other crimes committed by the Defendant in the residence

sufficient to support the charge of burglary, most notably the

sexual battery.

Furthermore, any misstatements regarding evidence of semen

on the victim’s face did not prejudice the Defendant at trial.

While the word semen was not directly connected to the DNA

evidence from the victim’s cheek by witness Mullins, there was

evidence brought forth that the Defendant ejaculated on the

victim’s face and that testing of a sample taken from the

victim’s cheek was found to contain the DNA belonging to the

Defendant. First, the victim testified that the Defendant had

ejaculated on her face, and the Defendant himself testified that

he did not deny that the victim had semen on her face and that

that had happened through the course of oral sex. The ER nurse

also testified that the victim had told her that the Defendant had

ejaculated on her face. Finally, the DNA analyst testified that

the swab taken from the victim’s cheek, and that it was a match

to the Defendant’s DNA.

The Court finds that the Defendant was not prejudiced by

counsel’s failure to object to these comments by the prosecutor

and failure to move for a mistrial, because either the prosecutor

was making a logical inference from the evidence or the

misstatement was not significant enough to have a provided a

basis for the Court to grant a mistrial.

The post-conviction court ruled both that counsel did not perform deficiently

and that, even if counsel’s performance was deficient, Combs proved no prejudice.

An improper prosecutorial remark compels habeas corpus relief only if the remark is

so egregious that the proceeding is rendered fundamentally unfair. “[I]t is not

enough that the prosecutors’ remarks were undesirable or even universally

condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). See also Smith v.

Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of due process analysis in cases

of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of

the prosecutor.”). Darden, 477 U.S. at 181, explains further:

The relevant question is whether the prosecutors’ comments ‘so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.’ Donnelly v. DeChristoforo,

416 U.S. 637, [643] . . . (1974). Moreover, the appropriate

standard of review in a petition for the writ of habeas corpus is

‘the narrow one of due process, and not the broad exercise of

supervisory power.’ Id., at 642 . . . .

Accord Tucker v. Kemp, 802 F.2d 1293, 1296 (11th Cir. 1986) (en banc) (“If a reviewing

court is confident that, absent the improper remarks, the jury’s decision would have

been no different, the proceeding cannot be said to have been fundamentally

unfair.”), cert. denied, 480 U.S. 911 (1987). A review of the prosecutor’s entire closing

remarks shows that the post-conviction court reasonably determined that counsel’s

failure to object was not prejudicial. As a consequence, Combs fails to show that the

post-conviction court’s ruling is an objectively unreasonable application of Strickland.

Ground 5

Combs alleges that trial counsel rendered ineffective assistance during closing

arguments by conceding to the elements of both charged crimes. The post-conviction

court rejected this claim as follows (Respondent’s Exhibit 18 at 32–34):

[T]rial counsel admitted that the Defendant had sex with the

victim, including that there was evidence of the acts, but he did

not concede the elements of burglary with assault or battery or

the elements of sexual battery. On the contrary, the statements

in closing argument regarding forensic evidence (i.e., tests sent

to FDLE which resulted in DNA matches to the Defendant)

would have conceded nothing more than the consensual sex

that the Defendant admitted to in his own sworn testimony at

trial. In addition, . . . there was some DNA evidence presented

during the trial which linked the Defendant to the victim.

. . . .

Because any misrepresentation regarding DNA or other

forensic evidence was consistent with the defense theory that

the Defendant was invited in to the victim’s residence where

only consensual sex occurred, and the Defendant’s own

testimony admitted to these same acts, the Defendant was not

prejudiced by defense counsel’s statements during closing that

DNA connected the Defendant to the victim in these ways. The

Court also finds that the mere fact that trial counsel put on a

defense that the victim fabricated her allegations of burglary and

sexual battery after a consensual sexual encounter does not

demonstrate that trial counsel stipulated to the Defendant’s

guilt of the crimes charged.

The post-conviction court ruled that the specific closing remarks highlighted by

Combs fail to prove that counsel conceded to elements of the crimes charged. To the

contrary, the post-conviction court’s determination is based on a reasonable reading

of the closing argument when considering the comments in proper context. For

example, Combs mischaracterizes counsel’s statement about the victim having been

beaten and strangled as an admission. The comment is actually counsel’s discussion

about the lack of injuries for someone who was supposedly beaten and strangled for

three hours. (Respondent’s Exhibit 4 at 477) Combs fails to show that the post-

conviction court’s ruling is an objectively unreasonable application of Strickland.

VI. CONCLUSION

Combs fails to meet his burden to show that the state court’s decision was

either an unreasonable application of controlling Supreme Court precedent or an

unreasonable determination of fact. As Burt v. Titlow, 134 S. Ct. 10, 15S16 (2013),

recognizes, an applicant’s burden under Section 2254 is very difficult to meet:

Recognizing the duty and ability of our state-court colleagues to

adjudicate claims of constitutional wrong, AEDPA erects a

formidable barrier to federal habeas relief for prisoners whose

claims have been adjudicated in state court. AEDPA requires

“a state prisoner [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 . . . beyond any possibility

for fairminded disagreement.” Harrington v. Richter, 562 U.S.

[86, 103] (2011). “If this standard is difficult to meet” — and it

is — “that is because it was meant to be.” Id., at [102]. We will

not lightly conclude that a State’s criminal justice system has

experienced the “extreme malfunctio[n]” for which federal

habeas relief is the remedy. Id., at [103] (internal quotation

marks omitted).

Combs’s application for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk must enter a judgment against Combs and close this case.

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Combs is not entitled to a certificate of appealability (“COA”). A prisoner

seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s

denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first

issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has

made a substantial showing of the denial of a constitutional right.” To merit a COA,

Combs must show that reasonable jurists would find debatable both the merits of the

underlying claims and the procedural issues he seeks to raise. See 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d

926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would

debate either the merits of the claims or the procedural issues, Combs is entitled to

neither a COA nor leave to appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis 1s

DENIED. Combs must obtain permission from the circuit court to appeal in forma

pauperts.

ORDERED in Tampa, Florida, on October 7, 2019.

Aiseleny

§STEVEND.MERRYDAY

UNITED STATES DISTRICT JUDGE

-47-