# Newsome v. Secretary Florida Department Of Corrections (Duval County)

> District Court, M.D. Florida · July 13, 2021

URL: https://www.frixlaw.com/law-library/cases/10642115

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 13, 2021
- **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/10642115

## How later opinions describe it (automated extraction)

- finding the Georgia court reasonably applied Strickland in denying a claim of ineffective assistance of counsel because the petitioner did not establish the action of counsel (failing to move for a mistrial based on prosecutorial misconduct
- finding a videotaped interview of a defendant seen entering an interrogation room wearing a white jumpsuit and handcuffed but then the handcuffs are not visible did not adversely affect the defendant’s substantial rights

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KENNETH KARLSTON NEWSOME,
Petitioner,
Vs. Case No. 3:19-cev-7-HES-MCR
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.

ORDER
I. INTRODUCTION
This cause is before the Court on Petitioner Kenneth Karlston
Newsome’s Petition Under 28 U.S.C. § 2254 By a Person in Custody Pursuant
to a State Court Judgment (Petition) (Doc. 1). He challenges his state court
(Duval County) conviction for attempted first degree murder with a weapon,
kidnaping, and armed robbery. Id. at 1-2. Respondents filed an Answer to
Petition for Writ of Habeas Corpus (Response) (Doc. 11). Petitioner filed a
Supplemental 28 U.S.C. § 2254 Petition (Supplemental Petition) (Doc. 14), and
Respondents filed a Supplemental Response to Petition for Writ of Habeas
Corpus (Supplemental Response) (Doc. 18). Finally, Petitioner filed a

Traverse and Request for an Evidentiary Hearing (Reply) (Doc. 22). See
Order (Doc. 10).
In the Petition, Petitioner raises four grounds. In the Supplemental
Petition, he raises grounds five (with seven sub-claims) and ground six.
Respondents contend ground one is procedurally defaulted and ground four is
partially procedurally defaulted. Response at 4. In addition, Respondents
contend ground five, with its seven sub-claims, is procedurally defaulted.
Supplemental Response.
Il. EVIDENTIARY HEARING
In his Reply, Petitioner asks that the Court conduct an evidentiary
hearing. “In a habeas corpus proceeding, the burden is on the petitioner to
establish the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep't of
Corr.. 834 F.3d 1299, 1318 (11th Cir. 2016) (citations omitted), cert. denied,
137.5. Ct. 2245 (2017). To be entitled to an evidentiary hearing, a petitioner
must allege “facts that, if true, would entitle him to relief.” Martin v. United
States, 949 F.3d 662, 670 (11th Cir.) (quoting Aron v. United States, 291 F.3d

Respondents filed an Appendix to Answer (Doc. 11) and an Appendix to Supplemental
Response (19). The page numbers referenced are the Bates stamp numbers at the bottom of
each page of the exhibit. Otherwise, the page number on the document will be referenced.
The Court will hereinafter refer to the Exhibits contained in the Appendices as “Ex.” For
the Petition, Response, Supplemental Petition, Supplemental Response, and Reply, the Court
references the page numbers assigned by the electronic filing system.

708, 715 (11th Cir. 2002)) (citation omitted), cert. denied, 141 S. Ct. 357 (2020).
See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011)
(opining a petitioner bears the burden of establishing the need for an
evidentiary hearing with more than speculative and inconcrete claims of need),
cert. denied, 565 U.S. 1120 (2012); Dickson v. Wainwright, 683 F.2d 348, 351
(11th Cir. 1982) (same).
If the allegations are contradicted by the record, patently frivolous, or
based upon unsupported generalizations, the court is not required to conduct
an evidentiary hearing. Martin, 949 F.3d at 670 (quotation and citation
omitted). Here, the pertinent facts are fully developed in this record or the
record otherwise precludes habeas relief; therefore, this Court can "adequately
assess [Petitioner's] claim[s] without further factual development," Turner vy.
Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034
(2004). Upon review, Petitioner has not met his burden as the record refutes
the asserted factual allegations or otherwise precludes habeas relief: therefore.
the Court finds Petitioner is not entitled to an evidentiary hearing. Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). As such, Petitioner's request for an
evidentiary hearing will be denied.

Il. HABEAS REVIEW
This Circuit opined that federal courts are authorized to grant habeas
relief to a state prisoner “only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States.” Lee v. GDCP
Warden, 987 F.3d 1007, 1017 (11th Cir. 2021) (quoting 28 U.S.C. § 2254).
Further, under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), there is a very deferential framework, limiting the power of federal
courts to grant relief if a state court denied a claim on its merits. Sealey v.
Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir. 2020) (citation
omitted) (acknowledging the deferential framework of AEDPA for evaluating
issues previously decided in state court), cert. denied, 2021 WL 1240954 (U.S.
Apr. 5, 2021); Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (per curiam) (recognizing
AKDPA imposes “important limitations on the power of federal courts to
overturn the judgments of state courts in criminal cases").
Indeed, relief is limited to occasions where the state court’s decision:
“was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United
States,’ or “was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.” A state
court’s decision is “contrary to” clearly established
federal law if the state court either reaches a
conclusion opposite to the Supreme Court of the
United States on a question of law or reaches a

different outcome than the Supreme Court in a case
with “materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 146
L.Ed.2d 389 (2000). “Under the ‘unreasonable
application’ clause, a federal habeas court may grant
the writ if the state court identifies the correct
governing legal principle” from Supreme Court
precedents “but unreasonably applies that principle to
the facts of the prisoner's case.” Id. at 413, 120S. Ct.
1495.
Lee, 987 F.3d at 1017-18.
This high hurdle is not easily surmounted: if the state court applied
clearly established federal law to reasonably determined facts when
determining a claim on its merits, “a federal habeas court may not disturb the
state court’s decision unless its error lies ‘beyond any possibility for fairminded
disagreement.” Shinn v. Kayer, 141 S. Ct. 517, 520 (2020) (per curlam)
(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Also, a state court's
finding of fact, whether a state trial court or appellate court, is entitled to a
presumption of correctness under 28 U.S.C. § 2254(e)(1). “The state court’s
factual determinations are presumed correct, absent clear and convincing
evidence to the contrary.” Sealey, 954 F.3d at 1354 (quoting 28 U.S.C. §
2254(e)(1)). This presumption of correctness, however, applies only to
findings of fact, not mixed determinations of law and fact. Brannan v. GDCP
Warden, 541 F. App'x 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing

the distinction between a pure question of fact from a mixed question of law
and fact), cert. denied, 573 U.S. 906 (2014). Furthermore, the second prong of
§ 2254(d), requires this Court to “accord the state trial court [determination of
the facts] substantial deference.” Dallas v. Warden, 964 F.3d 1285, 1302 (11th
Cir. 2020) (quoting Brumfield v. Cain, 576 U.S. 305, 314 (2015)), petition for
cert. filed, (U.S. Feb. 27, 2021) (No. 20-7589). As such, a federal district court
may not supersede a state court’s determination simply because reasonable
minds may disagree about the finding. Id. (quotation and citation omitted).
Finally, where there has been one reasoned state court judgment
rejecting a federal claim followed by an unexplained order upholding that
judgement, federal habeas courts employ a "look through" presumption: "the
federal court should ‘look through! the unexplained decision to the last related
state-court decision that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same reasoning." Wilson
v. Sellers, 138 8. Ct. 1188, 1192 (2018) (Wilson).
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance of counsel are “governed by the familiar
two-part Strickland[v. Washington, 466 U.S. 668 (1984)] standard.” Knight
v. Fla. Dep’t of Corr., 958 F.8d 1035, 1038 (11th Cir. 2020), cert. denied, 2021
WL 1240957 (U.S. Apr. 5, 2021). To prevail on a claim of ineffective assistance

of counsel, a petitioner must successfully show his counsel “made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment” as well as show “the deficient
performance prejudiced the defendant, depriving him of a ‘fair trial, a trial
whose result is reliable.” Raheem v. GDCP Warden, 995 F.3d 895, 908 (11th
Cir. 2021) (quoting Strickland, 466 U.S. at 687). As both components under
Strickland must be met, failure to meet either prong is fatal to the claim.
Raheem, 995 F.3d at 908 (citation omitted).
Finally, the Eleventh Circuit warns:
because “[t]he standards created by Strickland and §
2254(d) are both ‘highly deferential,’ ... when the two
apply in tandem, review is ‘doubly’ so. Harrington [v.
Richter, 562 U.S. 86, 105 (2011)] Gnternal citations
and quotation omitted). Thus, under § 2254(d), “the
question is not whether counsel's actions were
reasonable. The question is whether there is any
reasonable argument that counsel _ satisfied
Strickland’s deferential standard.” Id.
Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020), cert.
denied, 141 8. Ct. 1721 (2021).
V. EXHAUSTION AND PROCEDURAL DEFAULT
Respondents contend ground one, part of ground four, and ground five
are procedurally defaulted. The doctrine of procedural default requires the
following:

Federal habeas courts reviewing the
constitutionality of a state prisoner's conviction and
sentence are guided by rules designed to ensure that
state court judgments are accorded the finality and
respect necessary to preserve the integrity of legal
proceedings within our system of federalism. These
rules include the doctrine of procedural default, under
which a federal court will not review the merits of
claims, including constitutional claims, that a state
court declined to hear because the prisoner failed to
abide by a state procedural rule. See, e.g., Coleman, [?]
supra, at 747-748, 111 S. Ct. 2546; Sykes,[?] supra, at
84-85, 97 S. Ct. 2497. A state court's invocation of a
procedural rule to deny a prisoner's claims precludes
federal review of the claims if, among other requisites,
the state procedural rule is a nonfederal ground
adequate to support the judgment and the rule is
firmly established and consistently followed. See, e.g.,
Walker v. Martin, 562 U.S. ----, ----, 131 S. Ct. 1120,
1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,
508 U.S.----, ----, 180 S. Ct. 612, 617-618, 175 L.Ed.2d
417 (2009). The doctrine barring procedurally
defaulted claims from being heard is not without
exceptions. A prisoner may obtain federal review of a
defaulted claim by showing cause for the default and
prejudice from a violation of federal law. See Coleman,
501 U.S., at 750, 1118S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012).
A petition for writ of habeas corpus should not be entertained unless the
petitioner has first exhausted his state court remedies. Castille v. Peoples.
489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509 (1982). A procedural

2 Coleman v. Thompson, 501 U.S. 722 (1991).
3 Wainwright v. Sykes, 433 U.S. 72 (1977),

default arises "when 'the petitioner fails to raise the [federal] claim in state
court and it is clear from state law that any future attempts at exhaustion
would be futile." Owen v. Sec'y, Dep't of Corr., 568 F.3d 894, 908 n.9 (11th
Cir. 2009) (quoting Zeigler v. Crosby, 345 F.3d 1300, 1304 (11th Cir. 2003)),
cert. denied, 558 U.S. 1151 (2010).
There are, however, allowable exceptions to the procedural default
doctrine; "[a] prisoner may obtain federal review of a defaulted claim by
showing cause for the default and prejudice from a violation of federal law."
Martinez, 566 U.S. at 10 (citing Coleman, 501 U.S. at 750). To demonstrate
cause, a petitioner must show some objective factor external to the defense
impeded his effort to properly raise the claim in state court. Wright v.
Hopper, 169 F.3d 695, 703 (11th Cir.), cert. denied, 528 U.S. 934 (1999). If
cause is established, a petitioner must demonstrate prejudice. To
demonstrate prejudice, a petitioner must show "there is at least a reasonable
probability that the result of the proceeding would have been different had the
constitutional violation not occurred." Owen, 568 F.3d at 908.
Alternatively, a petitioner may obtain review of a procedurally barred
claim if he satisfies the actual innocence “gateway” established in Schlup v.
Delo, 513 U.S. 298 (1995). The gateway exception is meant to prevent a
constitutional error at trial from causing a miscarriage of justice and conviction

of the actually innocent. Kuenzel v. Comm’r, Ala. Dep't of Corr., 690 F.3d
1311, 1314 (11th Cir. 2012) (per curiam) (quoting Schlup, 513 U.S. at 324), cert.
denied, 569 U.S. 1004 (2013).
A. Ground One
In ground one, Petitioner raises the following claim:
The trial court committed reversible error in denying
the Petitioner’s pre-trial motion in lmine to exclude
the video portion of his taped interview with police
depicting him in jail uniform and handcuffs.
This error was in violation of the Petitioner’s Sixth
Amendment right to a fair trial and his Fourteenth
Amendment right to due process under the U.S.
Constitution.
Petition at 19.
On direct appeal, Petitioner, through counsel, raised the following claim:
“The lower court committed reversible error in denying Mr. Newsome’s motion
in limine to exclude the video portion of his statement to law enforcement
depicting him in jail uniform and handcuffs.” Ex. B5 ati. It was claimed the
prejudicial effect of viewing Petitioner in prison clothing and restraints in the
videotaped interview undermined the due process requirement of a fair □□□□□
and the presumption of innocence. Id. at 30. In support, it was noted that.
based on trial testimony, it was apparent Petitioner was under arrest for
different charges when interviewed at the jail. Id. at 31-32. Relying on

10

Florida Statute § 90.404, Petitioner argued the trial court erred in allowing the
introduction of other crimes, wrongs, or acts, essentially attacking the
character of the defendant. Id. at 32-33. Petitioner claimed prejudice is
established by the jury seeing Petitioner under arrest, in jail garb, and in
handcuffs. Id. at 33-34.
Upon review, Petitioner adequately exhausted his constitutional claim
of deprivation of due process of law and his entitlement to a fair trial under the
Sixth and Fourteenth Amendments by raising the matter on direct appeal.
Finding the issue without merit, the 1st DCA affirmed Petitioner’s Judgment
and Sentence. Hx. B8 at 7. As the state court provided a merit-based ruling,
this Court concludes ground one is not unexhausted nor is it procedurally
defaulted.
B. Ground Four
In ground four, Petitioner raises the following claim of ineffective
assistance of counsel:
Defense counsel was ineffective for failing to object
during cross-examination and closing arguments the
improper impeachment of the Petitioner’s alibi
witness Pastor Duncan by the state alleging that he
had been paid by Newsome’s family to testify at trial.
This error was in violation of the Petitioner’s 14th
Amendment rights to due process, and his 6th

11

Amendment right to the effective assistance of counsel
under the U.S. Constitution.
Petition at 33.
Respondents urge this Court to find that Petitioner only exhausted a
portion of the claim, that portion alleging counsel was ineffective for failing to
object during cross-examination of alibi witness Pastor Duncan. Response at
12-13. Indeed. upon review of the state court record, Petitioner did not
exhaust the claim that his counsel was ineffective for failure to object during
closing argument the improper impeachment Pastor Duncan by alleging he
had been paid by Newsome’s family to testify. In fact, ground six of the Rule
3.850 post-conviction motion asserts counsel performed deficiently in failing to
object to the prosecutor cross-examining Dallas Duncan regarding an
unsubstantiated claim that he had been bribed for his testimony, in violation
of the United States Constitution and the Florida Constitution. Ex. C1 at 29-
31.
In light of the above, the Court finds that portion of ground four claiming
the ineffective assistance of counsel for failure to object during the prosecutor's
closing argument 1s unexhausted and procedurally defaulted. It is clear from
state law that any future attempts at exhaustion of this ground would be futile.
As such, Petitioner has procedurally defaulted this ground for relief.

12

Furthermore, he has failed to show cause and prejudice or that a fundamental
miscarriage of justice will result if the Court does not reach the merits of this
portion of ground four. Consequently, the Court will not address the merits
of Petitioner's claim of ineffective assistance of counsel for failure to object
during the prosecutor's closing argument concerning Pastor Duncan being paid
for his testimony.
C. Ground Five
Respondents assert Ground Five, with its seven sub-claims. js
procedurally defaulted. See Supplemental Response. The record
demonstrates Petitioner raised his seven sub-claims to ground five in
Defendant’s Second Postconviction Motion; however, the trial court dismissed
the motion as untimely filed more than two years after Petitioner's conviction
became final. Ex. F1. The 1st DCA affirmed percuriam. Ex. F4.
Conceding procedural default, Petitioner argues his procedural default
should be excused based on the reasoning of Martinez because his post-
conviction counsel provided ineffective assistance of counsel by failing to raise
ground five (including all of its sub-claims) in the original Rule 3.850 motion.
Ex. Fl at 1-2, 24: Supplemental Petition at 1-2. Apparently, Petitioner
contends that the procedural default was caused by his post-conviction
counsel's ineffective assistance, the collateral proceeding in which counsel

13

erred was the first opportunity to raise the procedurally defaulted claim, and
the procedurally defaulted claim, ground five (and its subclaims), has some
merit.
The record demonstrates Petitioner had post-conviction counsel:
“[w]here, under state law, claims of ineffective assistance of trial counsel must
be raised in an initial-review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.” Martinez, 566 U.S. at
17. Petitioner relies on Martinez and asks that the default of ground five be
excused pursuant to Martinez.
Per Martinez, this Court must ask whether this Petitioner has satisfied
the standard for excusing a default. Petitioner blames his failure to raise
these grounds in his Rule 3.850 motion on the fact that he had the ineffective
assistance of post-conviction counsel. In relying on Martinez, Petitioner
contends ground five has some merit, that is, he can demonstrate the
underlying ineffective-assistance of counsel claims are substantial.
Martinez provides a narrow, equitable, non-constitutional exception to
the holding in Coleman. To the extent Petitioner claims his procedural
default should be excused based on the narrow exception under Martinez.
14

Petitioner must demonstrate the underlying ineffectiveness claim is
substantial. To meet this requirement, Petitioner must demonstrate the
claim has some merit. Martinez, 566 U.S. at 14. In this instance. the
underlying ineffectiveness claims raised in ground five lack merit: therefore.
Petitioner has not demonstrated he can satisfy an exception to the procedural
bar. Hereinafter, the Court will provide a merits analysis for ground five
(including the seven sub-claims).
VI. GROUND ONE
The trial court committed reversible error in denying
the Petitioner’s pre-trial motion in limine to exclude
the video portion of his taped interview with police
depicting him in jail uniform and handcuffs.
This error was in violation of the Petitioner’s Sixth
Amendment right to a fair trial and his Fourteenth
Amendment right to due process under the U.S.
Constitution.
Petition at 19.
Petitioner exhausted this claim by raising it on direct appeal. Ex. B5.
The Ist DCA affirmed finding “no merit” to the issue. Ex. B8 at 7.
The 1st DCA’s decision is entitled to AEDPA deference. Petitioner has
failed to show the state court’s decision for ground one was either an
unreasonable determination of the facts or in contravention of federal law.
The clearly established Federal law is limited to that which has been

15

determined by the Supreme Court of the United States, 28 U.S.C. § 2254(d)(1).
Petitioner has not shown that the rejection of this claim was either contrary
to, or involved an unreasonable determination of, clearly established Federal
law, or based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. As such, ground one is due
to be denied.
In the alternative, Petitioner is not entitled to habeas relief. Based on a pre-trial motion in limine for other reasons, the trial court viewed and listened
to the videotape before trial and denied the motion in limine, finding no prejudice to the
28

Petitioner's failure to establish the prejudice prong of the Strickland standard
is fatal to Petitioner's claim of ineffective assistance of counsel. Therefore.
ground three is due to be denied.
IX. GROUND FOUR®
Defense counsel was ineffective for failing to object
during cross-examination . . . the improper
impeachment of the Petitioner's alibi witness Pastor
Duncan by the state alleging that he had been paid by
Newsome’s family to testify at trial.
This error was in violation of the Petitioner’s 14th
Amendment rights to due process, and his 6th
Amendment right to the effective assistance of counsel
under the U.S. Constitution.
Petition at 33.
Petitioner raised a comparable claim in ground six of his post-conviction
motion, asserting counsel was ineffective for failure to object to the prosecutor's
cross-examination of Pastor Duncan. Ex. Cl at 29-31. Applying the
Strickland standard, the trial court denied relief. Id. at 83. The lst DCA per
curiam affirmed. Ex. C4. As the state court properly applied the two-
pronged Strickland standard of review, Petitioner cannot satisfy the “contrary
to’ test of 28 U.S.C. § 2254(d)(1) as the court denied the claim based on

defense.
6 The Court will only address the exhausted portion of ground four.
29

Strickland. As such, this Court must ask whether the court unreasonably
apphed that principle to the facts of Petitioner's case or premised its
adjudication of the claim on an unreasonable determination of the facts. The
Court does not find there was an unreasonable application or an unreasonable
determination of the facts.
The trial court succinctly denied this ground finding:
In Ground Six, Defendant claims counsel was
ineffective for failing to object to the State’s cross
examination of the alibi witness. Counsel filed a
Notice of Alibi. That alibi witness was called to
testify at trial, that at the time of the crime the
Defendant was at the witness’s home getting money.
A review of the transcript of the testimony of the alibi
witness as well as cross examination by the State
rebuts the allegation that any objection would have
been sustained. [Ex. K] The questioning by the
State was proper impeachment.
Ex. Cl at 83. The lst DCA affirmed this decision. Ex. C4.
The record shows Dallas Duncan testified at trial. Ex. B4 at 356-66.
Pastor Duncan testified Petitioner called him about 1:30 a.m., showed up on a
bicycle at approximately 1:50 a.m., and came to the door with a dark brown.
blue hat in his hands. Id. at 358-59. They had a five minute conversation
and Pastor Duncan gave Petitioner $20 for food. Id. at 359-60. Petitioner
left on his bicycle. Id. at 360. The prosecutor, on cross-examination, asked
Pastor Duncan if he had three felonies, and Pastor Duncan confirmed that fact.

30

Id. at 361-62. The prosecutor asked if anyone had told Pastor Duncan what
to say. Id. at 362. Pastor Duncan said no. Id.
The prosecutor then inquired about Pastor Duncan’s deposition. Id.
The prosecutor asked, “[a]nd the defendant’s mother gave you money to testify
in that deposition, didn’t she?” Id. Pastor Duncan responded no. Id. at 363.
The prosecutor referred back to Pastor Duncan's testimony when he said
Petitioner's mother “was downstairs fixing” to give Pastor Duncan money. Id.
Pastor Duncan explained he was just borrowing money and the two families
reciprocated helping one another. Id. Pastor Duncan said he was going to be
given money to take care of personal issues having nothing to do with
Petitioner’s criminal case. Id. at 364.
This was proper impeachment. Pastor Duncan had a felony record.
Additionally, he had apparently testified in his deposition that Petitioner’s
mother was going to give him some money after the deposition, meaning the
prosecutor could properly inquire about the nature of this transaction and its
impact on Pastor Duncan’s trial testimony.
There is no reasonable probability that the outcome of the case would
have been different if defense counsel had taken the action suggested by
Petitioner. Instead of making an objection during cross-examination, defense
counsel effectively used re-direct examination to address the matter, skillfully

31

re-directing the jury’s attention to Pastor Duncan’s relationship with
Petitioners mother. Id. at 3864. Pastor Duncan said he considered
Petitioner's mother family and would help her, but “not in lies.” Id. More
importantly, on cross-examination defense counsel was prepared to ask how
much money Pastor Duncan received from Petitioner's mother. Id. at 365.
Pastor Duncan's responded he did not obtain any money from Petitioner’s
mother after the deposition. Id. Instead, Pastor Duncan testified he was
given money by another family member, so he did not need money from
Petitioner's mother and did not get any money from her. Id.
Under these circumstances, defense counsel did not perform deficiently
in failing to object to the prosecutor’s cross-examination of Pastor Duncan.
Defense counsel took the effective approach of using re-direct examination to
address the matters raised on cross-examination and to show that Pastor
Duncan’s testimony was not bought and paid for by Petitioner’s mother but
rather Pastor Duncan had a close familial relationship with Petitioner's
mother but would not lie to support that relationship.
The court is not convinced that, under these circumstances, counsel's
performance fell outside the broad range of reasonably profession assistance.
The standard is reasonable performance, not perfection. Certainly, counsel's
decision to use re-direct examination to counter the state’s cross-examination

32

was well within the broad range of reasonably effective assistance. As noted
by Respondents, Mr. Duncan’s testimony was successfully rehabilitated by
trial counsel on re-direct. Response at 55. Petitioner has not shown
resulting prejudice as there is no reasonable probability that if defense counsel
had objected, his objection would have been sustained as the questioning by
the state was proper impeachment. Thus, there was nothing defective in
counsel's approach or any errors made in failing to object.
In denying post-conviction relief, the trial court properly applied the two-
pronged Strickland standard of review. Petitioner cannot satisfy the
“contrary to’ test of 28 U.S.C. § 2254(d)(1) as the state court rejected this claim
based on Strickland. Further, Petitioner has not shown the state court
unreasonably applied Strickland or unreasonably determined the facts.
Indeed, upon review, the state court was objectively reasonable in its
Strickland inquiry. Furthermore, the lst DCA affirmed the decision of the
trial court.
The Court finds the state court’s determination is consistent with federal
precedent. The lst DCA’s decision, although unexplained, is entitled to
AKDPA deference. Applying the look through presumption described in
Wilson, the state court’s ruling is based on a reasonable determination of the
facts and a reasonable application of the law. In brief, the state court's

33

adjudication of the claim is not contrary to or an unreasonable application of
Strickland and its progeny or based on an unreasonable determination of the
facts. This claim is due to be denied.
X. GROUND FIVE
Petitioner's judgment and_ sentence violates
constitutional provisions of federal and state laws asa
result of inept, subst[andjard prejudicial
representation of trial counsel.
Supplemental Petition at 9.
Petitioner has shown neither cause nor prejudice for failure to properly
present this claim in the state courts. As such, the claim is unexhausted and
procedurally defaulted. As noted above, Petitioner relies on Martinez and this
Court will undergo a merits analysis for ground five.
Although not a model of clarity, Petitioner apparently claims his counsel
was ill-prepared for trial and failed to obtain expert witnesses to address the
DNA and fingerprint evidence and simply relied upon what the state
presented. Supplemental Petition at 9-10. The record demonstrates
otherwise. Counsel was well-prepared to handle the cross-examination of the
fingerprint examiner and the DNA expert, and counsel effectively conducted
himself during cross-examination of these experts.”
> As Petitioner took the stand and admitted he went into the taxicab and left his brown hat
inside of the cab, it is not entirely clear what Petitioner expected counsel to do under these
34

Latent fingerprint examiner Tom Howell testified at trial. Ex. B3 at
267-75. Defense counsel, on cross-examination, effectively showed that Mr.
Howell did not have a college degree, had not taken any college level courses
in biology, genetics, or statistics. and was not certified by the Internationa!
Association for Identification. Id. at 275-77. Mr. Howell testified that his lab
had not been accredited by the ASCLD dash LAB. Id. at 277.
Mr. Howell testified on cross-examination that if he identified a latent
print to a person, that item is given to another examiner to verify the
identification. Id. at 281. Mr. Howell testified he was able to identify
Petitioner based upon a computer search, the Jacksonville Sheriff's Office
AFIS (automated fingerprint identification system). Id. at 281-82. The
identification system gives the examiner a candidate, but the examiner must
visually look at the latent print and the inked fingerprint and decide whether
the latent print was made by the individual. Id. at 282. Mr. Howell said the
system usually gives twenty-five candidates, and in this instance. Petitioner
was the number one candidate. Id. at 283. Mr. Howell explained, he would
go to the number two candidate only if dissatisfied that the print was not a
match to the first candidate. Id. Mr. Howell testified he made the

circumstances. Ex. B4 at 371-90. Despite his admitted presence in the cab, Petitioner
offered no explanation as to how his fingerprint landed on the outer passenger rear door. Id.
at 385. Petitioner simply said he did not recall opening the door. Id. at 386.
35

identification and then it was verified by another examiner who agreed with
Mr. Howell. Id. at 284.
Jeannelyn Adona, an expert in DNA analysis who works for the Florida
Department of Law Enforcement in the Jacksonville Regional Operations
Center in the biology and DNA section, testified at trial. Ex. B3 at 318-35.
She attested that the DNA from the brown hat matches the DNA profile from
Petitioner. Id. at 334-35. Importantly, on cross-examination, defense
counsel brought out the fact that the blue hat with a red brown stain found at
the scene contained DNA that was a match for a person named William
Mungin. Id. at 342-43. Ms. Adona attested that the DNA material from the
blue hat also included a minor DNA profile that matches the DNA profile of
Mr. Jean-Gilles, the victim. Id. at 341. She testified a blood test was
performed on the blue hat, but it was not performed on the brown hat because
no staining was observed on that hat. Id. at 335-36, 337-39.
Very effectively, defense counsel asked Ms. Adona if she had informed
law enforcement that her office had determined the source of the person who
deposited the DNA on the blue hat, and she responded in the affirmative and
provided the name: William Mungin. Id. at 342-43. Up until that time, the
state had managed to keep Mr. Mungin’s name out of the trial. Thus, right

36

before the state rested, the defense was able to present testimony of the name
of another individual whose DNA was deposited on evidence found at the scene.
This claim of ineffective assistance of counsel has no merit. Defense
counsel was prepared to cross examine the state’s expert witnesses and he
effectively did so. The Court is not convinced that there was prejudice such
that the result of the proceedings would have been different if counsel had
acted as Petitioner claims he should have done.
The Court concludes Petitioner's unexhausted claim of. ineffective
assistance of counsel is not substantial, and Petitioner has failed to show he
falls within the narrow parameters of the ruling in Martinez. As he has failed
to demonstrate that his underlying claim of ineffective assistance of counsel is
a substantial one, Petitioner simply does not meet the narrow exception set
forth in Martinez and his default is not excused.
In short, the Court finds ground five is unexhausted and procedurally
defaulted. Furthermore, he has failed to show cause and prejudice or that a
fundamental miscarriage of justice will result if the Court does not reach the
merits of ground five. Petitioner has not demonstrated he meets the a] lowable
exceptions to the procedural default doctrine. Having failed to establish cause
for the procedural default of ground five, the Court finds it to be procedurally
barred and should not be addressed on its merits in this federal post-conviction

37

proceeding. Therefore, ground five is due to be denied as procedurally
defaulted.
XI. GROUND FIVE A
Trial counsel failed to file preliminary motions.
Supplemental Petition at 11.
Petitioner has shown neither cause nor prejudice for failure to properly
present this claim in the state courts. As such, the claim is unexhausted and
procedurally defaulted. As noted above, Petitioner relies on Martinez and this
Court will undergo a merits analysis for ground five A.
In particular, Petitioner complains his counsel failed to move to suppress
the videotape. Id. Petitioner raised a similar ground in ground three of the
Petition. To the extent the claim has been addressed by the Court in ground
three, it will not be readdressed under this supplemental claim. As such.
ground five A is due to be denied as stated previously in this opinion.®
To the extent Petitioner presents a new claim that his counsel was
ineffective for not filing a motion to suppress the video of his interrogation by
the police based upon failure of the interrogators to notice defense counsel

= Notably. defense counsel did file a motion in limine, and after the court denied the motion.
the court recognized counsel had a standing objection to the showing of the videotape.
38

already representing Petitioner, the Court finds that claim is not substantial.
An explanation follows.
As noted by Respondents, the interview took place on July 31, 2014, Ex.
B3 at 290-311, and Petitioner was not arrested until November 22, 2014, Ex.
Bl at 1-2. Petitioner was not appointed counsel to represent him in case no.
162014CF010887 until November 23, 2014, when the court appointed the
public defender. Ex. A at 9; Ex. Bl at 11. Petitioner may have had
representation in a different case at the time of the interview, but he did not
have counsel for the crime occurring on June 10, 2014 against Marcel Jean
Gilles. Ex. B1 at 14.
The record shows that prior to making his statement to the officers.
Petitioner was properly advised of his Miranda? rights and freely waived them.
Ex. B38 at 293-98. See Gore v. Sec’y for Dep't of Corr., 492 F.3d 1273, 1301
(11th Cir. 2007) (“[I]f an accused is properly advised of the right to counsel
under Miranda and non-coercively, knowingly and intelligently waives that
right. representation by counsel on an unrelated matter will not taint that
waiver and the statements are admissible.”) (citing McNeil v. Wisconsin, 501
U.S. 171, 177-82 (1991)), cert. denied, 552 U.S. 1190 (2008): United States v.

Miranda Vv. Arizona, 384 U.S. 436 (1966).
39

Argueta, No. 1:10-CR-00086-26RWS, 2012 WL 3871911, at *1 (N.D. Ga. Sept.
5, 2012) (not reported in F.Supp.2d) (adopting report and recommendation)
(same). As such, Petitioner’s claim does not have some merit.
Petitioner has failed to show that the narrow exception recognized in
Martinez is applicable. Since Petitioner has failed to demonstrate the
underlying ineffective assistance of counsel claim is a substantial one, he does
not fall within this narrow exception. Therefore, he has failed to establish
cause for the procedural default of his claim raised in ground five A and his
default is not excused. In sum, the Court finds this ground procedurally
barred and should not be addressed on its merits in this federal proceeding.
XII. GROUND FIVE B
Defense counsel prejudicially condones state[’]s
prejudicial exclusion of blacks from sitting on jury
panel.
Supplemental Petition at 12.
Petitioner has shown neither cause nor prejudice for failure to properly
present this claim in the state courts. As such, the claim is unexhausted and
procedurally defaulted. As noted above, Petitioner relies on Martinez and this
Court will undergo a merits analysis for ground five B.
In essence, Petitioner claims his counsel was ineffective for not objecting
to five of the state’s challenges for cause (jurors #27, #32, #37, #41, and #42)

40

and four peremptory challenges (jurors #2, #12, #20, and #23). Respondents
argue Petitioner's contention is not a substantial one:
[BJefore the state brought cause challenges against
perspective [sic] jurors no. 27 (Cheryl Jaudon), no 32
(Keia Coenen), no. 37 (Virgil Mims), no. 41 (Jennifer
Dykes) and no. 42 (Sharon Todd), each of them said
they didn’t think they could be fair and impartial if
selected as jurors for Petitioner’s trial. Thus, it was
unnecessary for defense counsel to object, as valid
grounds to support the state’s challenges had
previously been established on the record. Similarly,
before the state exercised its peremptory challenges
against jurors no. 2 (Ann Cowan), no. 12 (Paul
Barbato), no 20 (Lecheles Magby) and no. 23 (Maggie
Rogers), each of the prospective jurors had clearly
articulated race-neutral grounds to do so on the
record. Thus, it was unnecessary for defense counsel
to object, as valid, race-neutral grounds to support the
state's challenges had previously been established on
the record.
Supplemental Response at 18-19.
The record demonstrates counsel was not ineffective for failure to object
to the challenges for cause (#27 Cheryl Jaudon, #32 Keia Coenen, #37 Virgil
Mims, #41 Jennifer Dykes, and #42 Sharon Todd) as each one had either
expressed an inability to follow the law and/or an inability to be fair and
impartial on the record. Id. at 10-13. Ex. B2 (Jury Selection). Defense
counsel did not object to these strikes. Ex. B2 at 121-23. Of interest, at one

4]

point, the state accepted the panel, but the defense continued to strike
additional panel members. Id. at 126-27.
With regard to peremptory challenge of #2, Ann Cowan, the state had
previously attempted to strike her for cause, but the court denied the for cause
challenge. Id. at 117. Notably, defense counsel objected to the challenge for
cause, stating Ms. Cowan said she had a problem with the principal theory.
but she did not state she could not follow the court’s instruction. Id. The
court sustained the objection and denied the state’s challenge for cause. Id.
at 118. The record shows Ms. Cowan did have a problem with the principal
theory and expressed her concerns during voir dire. Id. at 52-55. Thus, there
was a race neutral reason for the peremptory challenge on the record.
Therefore, counsel did not perform deficiently by failing to object to the state’s
peremptory challenge.
Mr. Barbato, #12, described himself as a former criminal defense
attorney and an active attorney. Id. at 16-17, 63, 127. He said both his son
and daughter had been arrested, and he was frustrated with how his daughter
had been treated. Id. at 83-84. Thus, there was sufficient race-neutral
reasons on the record for the peremptory strike and counsel did not perform
deficiently in failing to object to the state’s peremptory strike. See
Supplemental Response at 16-17.

42

Ms. Magby, #20, expressed dissatisfaction with law enforcement after
her car had been stolen. Ex. B2 at 21, 112, 127. Ms. Magby said the police
did not do a good job; she got her car back “after it was shot up, after it was
involved in something.” Id. at 112. Thus, a race-neutral reason for a
peremptory challenge was already on the record. As such, defense counsel did
not render deficient performance for failing to object to the peremptory
challenge of Ms. Magby. See Response at 17.
With regard to Ms. Rogers, #23, she said her brother had been arrested
for two DUI’, but she felt he was treated fairly. Ex. B2 at 87. More
significantly, the state first challenged Ms. Rogers for cause, stating she had
disclosed being arrested for petit theft in 2002. Id. at 119. Defense counsel
inquired as to whether she was adjudicated. Id. at 120. The prosecutor said
he believed so, but at least accused. Id. Defense counsel objected stating he
beleved Ms. Rogers may have been bogged down with all of the questions. Id.
The court, in an abundance of caution, denied the state’s challenge for cause.
Id. Thereafter, the state used its peremptory challenge against Ms. Rogers.
without objection. Id. at 127-28. Again, there were sufficient grounds for a
race-neutral peremptory challenge on the record: therefore, counsel did not
perform deficiently. See Response at 18. Finally, and importantly, after

43

conferring with his counsel, on the record Petitioner stated his satisfaction
with his counsel and the jury selected. Ex. B2 at 129-31.
The Court finds ground five B does not have some merit. As Petitioner
has failed to demonstrate the underlying ineffective assistance of counsel claim
is a substantial one, the narrow exception set forth in Martinez is inapplicable
and does not excuse the procedural default of ground five B. In conclusion.
Petitioner has failed to establish cause for the procedural default of his claim
raised in ground five B and his default is not excused. Accordingly, ground
five B is procedurally barred and should not be addressed on its merits.
XIII. GROUND FIVE C
Defense counsel failed to object to prosecution
testifying and further noticing trial court of
prosecutorial misconduct.
Supplemental Petition at 13.
Petitioner has shown neither cause nor prejudice for failure to properly
present this claim in the state courts. As such, the claim is unexhausted and
procedurally defaulted. As noted above, Petitioner relies on Martinez and this
Court will undergo a merits analysis for ground five C.
Petitioner references three lines from the prosecutor’s opening statement
which were presented without objection and Petitioner asserts they constituted
improper testimony by the prosecutor. Supplemental Petition at 13

. 44

(transcript p. 170 L 18 “The defendant took the knives out of the holes|.]”: p.
170 L 23 “Mr. Jean-Gilles will tell you he did all he could to push himself out
of that cab[.]”; and p. 171 L2 “Mr. Jean-Gilles will tell you that as he is on the
ground outside of the taxicab he could see the man in the back seat/.]”). Ex.
at 170-71.
Of course, prior to opening statements, the court instructed the jury on
the purpose of the opening statements by the attorneys:
At the beginning of the trial, essentially where we are
now, the attorneys will have an opportunity if they
wish to make an opening statement. The opening
statement gives the attorneys a chance to tell you what
evidence they believe will be presented during the
trial. What the lawyers say is not evidence, and you
are not to consider it as such.
Id. at 160-61.
The prosecutor told the jury he expected Mr. Jean-Gilles to testify as to
the above-mentioned circumstances. At trial, Mr. Jean-Gilles testified, “the
guy in the back put two knife [sic] in my neck and cut my neck. and he pushed
the knife very deep into my neck.” Id. at 185. He continued, “I feel the knife
cut here and he pushed his knife into my neck very deep ....” Id. He
continued in this vein: “[h]e just pulled the knife inside the hole to cut my
neck.” Id. at 186-87.
Mr. Jean-Gilles also testified as to his struggle to get out of the cab:

45

I keep my head there and the guy in the front he go on
top of me to— to pull me back inside the car but I keep
pushing and I keep my head bend [sic] toward the door
and I keep pushing anyway | can with my hand, with
my foot, anywhere I can to push — to exit the door, and
I fight and I fight with them go on top of me to pull me
back in the car, but in -- I push until I fell on the
ground.
Id. at 188. Although Mr. Jean-Gilles described the struggle, he did not
mention seeing the man in the back seat of the cab from the ground.
The prosecutor merely told the jury what he thought the witness would
say during his testimony. The prosecutor's comments reflected the content
and meaning of the victim’s testimony, if not his exact words. These
statements did not improperly deceive the jury or mislead the jury.
Furthermore, any objection by defense counsel would have been futile as they
would have been overruled because the statements are not inadmissible.
Moreover, “[t]he standing presumption is that jurors follow
instructions.” Graham v. Fla. Att’y Gen., No. 5:11-cv-505, 2014 WL 2118877.
at “4 (M.D. Fla. May 20, 2014) (not reported in F.Supp.3d) (citing Penry v.
Johnson, 532 U.S. 782, 799 (2001)): Richardson v. Marsh, 481 U.S. 200. 206
(1987); Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985)). Here the court
instructed the jury that what the lawyers said during opening statements was

46

not evidence. There is no evidence that the jury failed to follow the court's
instructions.
In failing to demonstrate counsel’s performance was deficient, Petitioner
has failed to show his underlying claim of ineffective assistance of counsel has
some merit. Any failure to object during opening statement did not. fall
outside the wide range of reasonably professional assistance.
Petitioner also complains that the prosecutor testified to the jurors
during closing argument, deliberately misstated the facts and testified to facts
not in evidence, and finally, misstated the law when attempting to define
reasonable doubt and when addressing the matter of the principal jury
instruction. Supplemental Petition at 14. Petitioner asserts counsel was
ineffective for letting the prosecutor make these impermissible comments and
letting the prosecutor make a call for justice without objection. Id.
Of import, the court instructed the jury immediately prior to closing
argument:
Both the state and the defense have now rested their
case. The attorneys now will present their final
arguments.
Please remember that what the attorneys say is
not evidence or your instruction on the law. However.
do listen closely to their arguments. They are
intended to aid you in understanding the case.

47]

kx. B4 at 414. After closing arguments, the court instructed: “[t]his case
must be decided only on the evidence that you have heard from the testimony
of the witnesses and have seen in the form of the exhibits in evidence and these
instructions.” Id. at 471. The court further instructed, “[y]our duty is to
determine if the defendant has been proven guilty or not in accord with the
law.” Id.at472. Thecourt reminded thejury: “[y]our verdict must be based
on the evidence and on the law contained in these instructions.” Id.
The Court presumes the jury followed these instructions and presumes
the jury did not consider the prosecutor's comments during closing argument
as evidence. “[It is] the almost invariable assumption of the law that jurors
follow their instructions.” Richardson, 481 U.S. at 206. Thus. this Court
should presume that the jury acted according to law. Strickland, 466 U.S. at
694.
This Court has found:
Attorneys are permitted wide latitude in their
closing arguments. Hammond v. Hall, 586 F.3d 1289,
1335 (11th Cir. 2009) (finding the Georgia court
reasonably applied Strickland in denying a claim of
ineffective assistance of counsel because the petitioner
did not establish the action of counsel (failing to move
for a mistrial based on prosecutorial misconduct)
outside the wide range of reasonable professional
assistance), cert. denied, 562 U.S. 1145 (2011).
However, attorneys should not make “[i]mproper
suggestions, insinuations, or assertions” that are

48

intended to mislead the jury or appeal to passions or
prejudices during closing arguments. United States v.
Hope, 608 Fed. Appx. 831, 840 (11th Cir. 2015) (per
curiam).

Spencer v. Secy, Fla. Dep't of Corr., No. 3:14-CV-589-J-39PDB, 2017 WL
897303, at *7 (M.D. Fla. Mar. 7, 2017) (not reported in Fed. Supp.).
Giving the prosecutor wide latitude in closing argument, the comments
of the prosecutor were not so egregious as to have influenced the jury to reach
a more severe verdict than it otherwise would have. Defense counsel’s
representation did not fall outside the range of reasonably professional
assistance in failing to object. Moreover, there is no reasonable probability
that the outcome of the proceeding would have changed if defense counsel had
objected or moved for dismissal based on the prosecutor’s alleged improper
comments in closing.
The court has reviewed the closing argument and finds nothing
egregious in the prosecutor’s summation of the facts to the jury. Ex. B4 at
418, 421. The prosecutor said the defendant “sliced the front” of the victim’s
throat, id. at 417, and apparently during his testimony, the victim was
motioning towards the front of his throat. Ex. B3 at 187. When asked to
point to his neck, the victim apparently pointed underneath his ears. Id. at
187-88. Of course, the jury was able to watch the victim gesticulate as he

49

testified, and then the court instructed the jury to base its verdict on the
evidence.
There was nothing impermissible about the state arguing it had proved
its case beyond a reasonable doubt. Ex. B4 at 421, 430. Therefore, counsel
did not perform deficiently in failing to object. Also, the prosecutor's
argument that Petitioner did not just show up to rummage through the cab
was reasonably based on the evidence presented by the state. Id. at 430.
Regarding any failure to object to the prosecutor's attempt to summarize
the law, the jury was repeatedly instructed to base its decision on the law
provided by the trial court in its instructions. The jury was told both before
and after closing argument to rely on the law contained in the instructions and
to reach its verdict only on the evidence heard from the testimony of the
witnesses and seen in the form of the exhibits in evidence.
The Court presumes the jury acted according to law and followed the
court's instructions. Therefore, any failure of counsel to object did not amount
to deficient performance. As Petitioner has failed to demonstrate the
underlying ineffective assistance of counsel claim is a substantial one, the
narrow exception set forth in Martinez is inapplicable and does not excuse the
procedural default of ground five C. Thus, Petitioner has failed to establish
cause for the procedural default of his claim raised in ground five C and the

50

Court finds his default is not excused. Accordingly, ground five C is deemed
procedurally barred and ultimately defaulted.
XIV. GROUND FIVE D
Defense counsel fails to request special, authorized,
bastard jury instruction based on defense posture and
prosecution’s misleading inferences concerning
defense witness and defendant.
Supplemental Petition at 15.
Petitioner has shown neither cause nor prejudice for failure to properly
present this claim in the state courts. As such, the claim is unexhausted and
procedurally defaulted. As Petitioner relies on Martinez, this Court will
undergo a merits analysis for ground five D.
Petitioner complains the jury was not given an instruction: “concerning
the matter of prior felony convictions and how this fact could not be considered
by them as substantive evidence of Defendant's guilt; that, Mr. Duncan’s prior
conviction is not to be considered substantive evidence that he would take the
stand and commit perjury.” Supplemental Petition at 15-16. Petitioner
contends his counsel performed deficiently for failure to request a special
instruction based on the fact that Petitioner took the stand and admitted
another uncharged crime. Id. at 16. Petitioner complains that the least

51

counsel could have done was request a “bastardized jury instruction” to assist
the jurors and the defense. Id.
In pertinent part, the court instructed the jury:
You may find some of the evidence not reliable
or less reliable than other evidence. You should
consider how the witnesses acted as well as what they
said. Some things you should consider are: Did the
witness seem to have an opportunity to see and know
the things about which the witness testified?
Did the witness seem to have an accurate
memory?
Was the witness honest and straightforward in
answering the attorney's questions?
Did the witness have some interest in how the
case should be decided?
Does the witness’ testimony agree with the other
testimony and other evidence in the case?
Has the witness been offered or received any
money, preferred treatment or other benefit in order
to get the witness to testify?
Did the witness at some other time make a
statement that is inconsistent with the testimony he
or she gave in court?
Has the witness been convicted of a felony or
misdemeanor crime of dishonesty?

52

The defendant in this case has become a witness.
You should apply the same rules to consideration of his
testimony that you apply to the testimony of the other
witnesses.

A statement claimed to have been made by the
defendant outside of court has been placed before you.
Such a statement should always be considered with
caution and be weighed with great care to make
certain it was freely and voluntarily made.
Therefore, you must determine from the
evidence that the defendant’s alleged statement was
knowingly, voluntarily and freely made. In making
this determination you should consider the total
circumstances including but not limited to whether
when the defendant made the statement he had been
threatened in order to get him to make it and whether
anyone had promised him anything in order to get him
to make it.
If you conclude the defendant’s out-of-court
statement was not freely and voluntarily made you
should disregard it.
Ex. B4 at 468-71.
In Floyd v. Fla. Dep’t of Corr., No. 3:15CV361-MCR/CAS, 2017 WL
4229054, at *7 (N.D. Fla. July 7, 2017) (not reported in Fed. Supp.), report and
recommendation adopted by 2017 WL 4226141 (N.D. Fla. Sept. 22, 2017), the
district court opined: “Florida's standard jury instructions are presumed
correct and are preferred over special instructions. Gutierrez v. State, 177 So.

53

3d 226, 230 (Fla. 2015). Florida courts are generally required to adhere to the
standard jury instructions unless the judge determines the instruction does
not accurately and adequately state the relevant law. Moody v. State, 359 So.
2d 557, 560 (Fla. 4th DCA 1978).” Here, the instructions given by the trial
court correctly stated Florida law, and Petitioner does not contend otherwisc.
He simply asserts that a “bastardized instruction” should have been given to
aid the jury.
Because the standard instruction accurately stated Florida law,
Petitioner has failed to demonstrate that trial counsel was deficient in failing
to request a “bastardized instruction.” Indeed. as long as the jury instructions
are proper, any failure to object does not amount to a serious and substantial
deficiency that is measurably below the standard of competent counsel. Davis
v. Sec'y, DOC, No. 2:12-cv-659-FtM-38CM, 2015 WL 3509324, at *7 (M.D. Fla.
June 4, 2015) (not reported in F.Supp.3d) (allowing that counsel is not
ineffective for allowing the use of a standard instruction instead of proposing
a special instruction as the Florida Supreme Court approves the standard jury
instruction and its interpretation of state law is unassailable).
Petitioner cannot demonstrate that but for counsel’s alleged error, the
outcome of the proceeding would have been different. The Court concludes
Petitioner's unexhausted claim of ineffective assistance of counsel is not

54

substantial, and Petitioner has failed to show he falls within the narrow
parameters of the ruling in Martinez. As he has failed to demonstrate that
his underlying claim of ineffective assistance of counsel is a substantial one.
Petitioner simply does not meet the narrow exception set forth in Martinez and
his default is not excused.
In short, the Court finds ground five D is unexhausted and procedurally
defaulted. Upon review, Petitioner has failed to show cause and prejudice or
that a fundamental miscarriage of justice will result if the Court does not reach
the merits of ground five D. In this case, Petitioner has not demonstrated he
meets the allowable exceptions to the procedural default doctrine. Having
failed to establish cause for the procedural default of this ground, the Court
finds it to be procedurally barred and should not be addressed on its merits in
this federal post-conviction proceeding. Therefore, ground five D is due to be
denied as procedurally defaulted.
XV. GROUND FIVE E
Defense counsel omitted to notice trial court of the
flawed jury instruction as read to the jurors.
Supplemental Petition at 16.
This claim is unexhausted and procedurally defaulted. Petitioner has
not shown cause for the default and prejudice from violation of federal law.

a5

Petitioner relies on Martinez and asks that the default of ground five E be
excused pursuant to Martinez. Consequently, this Court will undergo a
merits analysis for ground five E.
Petitioner complains trial counsel failed to object to the trial judge's
omission of the lesser included offense of robbery in count three and to the
principal instruction when principal was not listed on the verdict form.
Supplemental Petition at 16-17. The record shows Petitioner was charged by
amended information with attempted murder in the first degree with a
weapon, kidnaping, and armed robbery. Ex. Bl at 39. Count three charges:
“KENNETH KARLESTON NEWSOME on June 10,
2014... did unlawfully by force, violence, assault, or
putting in fear, take money or other property, to-wit:
U.S. currency, the property of Marcel Jean Gilles, from
the person or custody of Marcel Jean Gilles, with the
intent to permanently or temporarily deprive Marcel
Jean Gilles of the money or other property, and in the
course of committing said robbery, carried a deadly
weapon, to-wit: knife... .”
Id.
The court has reviewed the jury instructions, and counsel's performance
was not deficient for failure to object to the robbery instruction as it was
adequately set forth in the instructions given. The court instructed:
As to count three, to prove the crime of robbery,
the state must prove the following four elements
beyond a reasonable doubt: One, Kenneth Newsome

56

took money or other property from the person or
custody of Marcel Jean-Gilles.
Two, force, violence, assault or putting in fear
was used in the course of the taking,
Three, the property taken was of some value.
Four, the taking was with the intent to
permanently or temporarily deprive Marcel Jean-
Gillis of his right to the property or any benefit from it
or appropriate the property of Marcel Jean-Gilles to
his own use or to the use of any person not entitled to
it.
In the course of the taking means that the act
occurred prior to, contemporaneous with or
subsequent to the taking of the property and that the
act and the taking of the property constitute a
continuous series of acts or events.
In order for the taking of property to be robbery
it is not necessary that the person robbed be the actual
owner of the property. It is sufficient if the victim has
the custody of the property at the time of the offense.
The taking must be by the use of force or
violence or by assault so as to overcome the resistance
of the victim or by putting the victim in fear so that
the victim does not resist. The law does not require
that the victim of robbery resist to any particular
extent or that the victim offer any actual physical
resistance if the circumstances are such that the
victim is placed in fear of death or great bodily harm if
he or she does resist, but unless prevented by fear
there must be some resistance to make the taking one
done by force or violence.

57

In order for a taking by force, violence or putting
in fear to be robbery it is not necessary that the taking
be from the person of the victim. It is sufficient if the
property taken is under the actual control of the victim
so that it cannot be taken without the use of force,
violence or intimidation directed against the victim.
Ex. B4 at 462-63.
The court further instructed:
If you find the defendant guilty of the crime of
robbery then you must further determine beyond a
reasonable doubt if in the course of committing the
robbery the defendant carried some kind of weapon.

If you find that the defendant carried a knife in
the course of committing the robbery and that the
knife was a deadly weapon you should find him guilty
of robbery with a deadly weapon.
Id. at 463-64.
The court instructed what constitutes a deadly weapon. Id. at 464.
The court then instructed on the lesser included crime of thett. Id. at 465.
The court also gave a principal instruction:
if the defendant helped another person or persons
commit or attempt to commit a crime the defendant is
a principal and must be treated as if he had done all
the things the other person or persons did if the
defendant had a conscious intent that the criminal act
be done and the defendant did some act or said some
word which was intended to and which did incite,
cause, encourage, assist or advise the person or

58

persons to actually commit or attempt to commit the
crime.
To be a principal the defendant does not have to
be present when the crime is committed or attempted.

Id. at 466.
The verdict form for count three allows the jury to select finding the
defendant guilty of robbery in the first line. Ex. B1 at 54. Underneath that
selection, the jury was told, if the jury found the defendant guilty of the offense,
the jury must choose one of the findines: did carry, display or use a deadly
weapon during the commission of the offense: or did carry, display or use a
weapon during the commission of the offense: or did not carry, display or use a
weapon during the commission of the offense. Id. The jury selected the first,
the deadly weapon. Id.
The instructions given by the court aligned with the verdict form.
Based on the above, the jury could have selected robbery and not selected the
deadly weapon finding. The jury certainly had that option. There was
significant evidence presented to the jury that a knife (or knives) was used by
the perpetrator in the back seat of the cab during the offense; therefore, the
jury's finding was well supported by the evidence presented at trial.

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Finally, counsel will not be deemed deficient for failure to object to a
principal instruction or the lack of a special verdict form under the principal
theory. See Evans v. State, 995 So. 2d 933, 949 (Fla. 2008) (per curiam)
(allowing the state to proceed under dual theories). In Petitioner’s case, the
verdict clearly reflects the jury found Petitioner physically committed the
crime with a deadly weapon (“We find that the Defendant did carry, display or
use a deadly weapon during the commission of the offense.”). See Chapman
v. Secy, Fla. Dep’t of Corr., No. 1:17-cv-179-TKW-GRJ, 2020 WL 6747390, at *
14 (N.D. Fla. Aug. 4, 2020) (rejecting an ineffective assistance of counsel claim
finding there is not a reasonable probability that counsel’s failure to object to
a verdict form affected the outcome of the trial), report and recommendation
adopted by 2020 WL 6746619 (N.D. Fla. Nov. 17, 2020).
Therefore, the Court is not convinced that ground five E has some merit.
As such, Petitioner has failed to show that the narrow exception recognized in
Martinez is applicable. Since Petitioner has failed to demonstrate the
underlying ineffective assistance of counsel claim is a substantial one, he does
not fall within this narrow exception. Therefore, he has failed to establish
cause for the procedural default of his claim raised in ground five E and his
default is not excused. In sum, the Court finds ground five E procedurally
barred and should not be addressed on its merits in this federal proceeding.

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XVI. GROUND FIVE F
Defense counsel fails to object to the imposed sentence
unposed by trial court.
Supplemental Petition at 17.
This claim is unexhausted and procedurally defaulted, but Petitioner
relies on Martinez and asks that the default of ground five F be excused
pursuant to Martinez. As such, this Court will apply a merits analysis for
ground five F.
In this ground, Petitioner contends the imposition of the consecutive
sentence is an illegal sentence, the verdict does not support this sentence, and
his counsel performed deficiently by failing to object to the sentence. Id. at
18. This claim has no merit. The verdict supports the court’s sentence. Ex.
Bl at 51-54. It is entirely within the trial court’s discretion to impose
sentences consecutively or concurrently. Bradley v. State, 174 So. 3d 1052.
1054 (Fla. 5th DCA 2015) (the court is “given discretion to impose the sentences
concurrently or consecutively as it sees fit”). But cf. Jones v. Crosby, 857 So.
2d 972, 973 (Fla. 3rd DCA 2003) (per curiam) (different rules apply if habitual
offender sentences or mandatory minimum sentences are involved). The trial
court exercised its discretion in sentencing Petitioner to consecutive terms of
confinement. Ex. Bl at 95-98, 184. Thus, any objection by defense counsel

61

would not have been sustained. Brewster v. Hetzel. 913 F.3d 1042. 1056 (11th
Cir. 2019) (a defense attorney need not make a meritless motion or objection
that would not have obtained relief). Under these circumstances, defense
counsel was not deficient for failing to object to the imposition of consecutive
sentences.
The court is not convinced that, under these circumstances, counsel’s
performance fell outside the range of reasonably professional assistance.
Petitioner has not shown resulting prejudice as there is no reasonable
probability that if defense counsel had objected, his objection would have been
sustained under the circumstances presented.
The Court finds ground five F does not have some merit. As Petitioner
has failed to demonstrate the underlying ineffective assistance of counsel claim
is a substantial one, the narrow exception set forth in Martinez is inapplicable
and does not excuse the procedural default of ground five F. In conclusion.
Petitioner has failed to establish cause for the procedural default of his claim
raised in ground five F and his default is not excused. Accordingly, ground
five F is procedurally barred and should not be addressed on its merits.
XVII. GROUND FIVE G
Defense counsel failed to preserve matters and now his
egregious omissions combined with governing
principles of law amounts to violation of due process.

62

Supplemental Petition at 18.
Ground five G is unexhausted and procedurally defaulted. Petitioner
asks that this default be excused pursuant to Martinez. As such. the Court
will apply a merits analysis for ground five G.
Petitioner argues his counsel performed deficiently by failing to properly
file a motion for judgment of acquittal arguing weight and sufficiency, the
manipulation of the trial by pyramiding inferences, and the misuse of two
separate charges (count one, attempted murder in the first degree with a
weapon, and count three, armed robbery). Supplemental Petition at 18.
The record demonstrates the following. At the close of the state’s case.
Mr. Thurston stated:
As the state has rested the defense enters a motion for
a J.O.A. on the standard after reviewing the evidence
in the light of the favor of the prosecution a trier of fact
could not have found essential elements of the crimes
alleged beyond a reasonable doubt in Tibbs versus
Florida.
Ex. B3 at 344. The state responded that the state had presented a prima facie
case of guilt and met its burden of showing all elements of the crimes, venue.
and identification. Id. The Court, taking all the evidence in the light most
favorable to the state, found the state had established a prima facie case for all
three counts. Id. at 344-45. Mr. Thurston renewed the motion for judgment

63

of acquittal and the court denied the motion finding the state had met a prima
facie case “for all the elements in all three counts of the information.” Ex. B4
at 391-92.
Broadly reading defense counsel’s argument in support of the motion for
judgment of acquittal, it appears that counsel may have addressed the weight
of the evidence as well as the sufficiency in relying on Tibbs v. Florida, 457
U.S. 31, 37-38 (1982) (a conviction rests upon insufficient evidence when. even
after viewing the evidence in the light most favorable to the prosecution, no
rational factfinder could have found the defendant guilty beyond a reasonable
doubt; a reversal based on the weight of the evidence, goes to whether a ereater
amount of credible evidence supports one side of an issue or cause than the
other) (quotation and citation omitted). The lst DCA, however, found that
counsel made a boilerplate motion for judgment of acquittal because he did not
point to any elements of the crimes for which he believed evidence was lacking.
Ex. B8 at 6.
The Court is not convinced that counsel performed deficiently in this
regard because the trial court specifically found the state made a prima facie
case for all of the elements in all three counts of the information. Therefore.
even if counsel had pointed out elements of the crimes for which he believed
evidence was lacking, he would not have prevailed on his motion as evidenced

64

by the court’s ruling and based on the evidence presented at trial.
Furthermore, the greater weight of the more credible evidence supported the
state's case. [ven assuming deficient performance, Petitioner has not shown
resulting prejudice as there is no reasonable probability that if defense counsel
had made a more complete motion, his motion would have been granted under
the circumstances presented.
The record shows the state made a prima facie case for all of the elements
of attempted murder with a weapon and for armed robbery. The state
presented competent evidence to support every element of the crime of
attempted murder (a premeditated design and specific intent to commit the
underlying crime of murder, an overt act designed to effectuate that intent.
carried beyond mere preparation, but falling short of executing the ultimate
design) and every element of the crime of armed robbery (the defendant took
money or other property; force, violence, assault, or putting in fear was used in
the course of the taking; the property taken was of some value: the taking was
with the intent to permanently or temporarily deprive the victim of his right
to the property or any benefit from it or appropriate the property of the victim.
to his own use or to the use of any person not entitled to it, with a
determination of whether the defendant carried some kind of deadly weapon,
weapon, or no weapon). Williams v. State, 531 So. 2d 212, 216 (Fla. 1st DCA

65

1988) Gury found defendant guilty of attempted first degree murder with a
crowbar and armed robbery and the 1st DCA affirmed).
The court is not convinced that, under these circumstances, counsel's
performance fell outside of the range of reasonably professional assistance.
Even if it did, Petitioner has not shown resulting prejudice as there is no
reasonable probability that if defense counsel had done as Petitioner argues he
should have done, Petitioner would have prevailed on his motion.
In sum, the Court finds ground five G does not have some merit. As
Petitioner has failed to demonstrate the underlying ineffective assistance of
counsel claim is a substantial one, the narrow exception set forth in Martinez
is inapplicable and does not excuse the procedural default of ground five G.
Thus, Petitioner has failed to establish cause for the procedural default of his
claim raised in ground five G and the Court finds his default is not excused.
Accordingly, ground five G is deemed procedurally barred and ultimately
defaulted.
XVIII. GROUND SIX
Petitioner’s Sixth Amendment right to the U-S.
Constitution was violated when initial collateral
postconviction counsel failed to exhaust those grounds
of constitutional violations as a result of trial court and
defense counsel’s egregious acts.
Supplemental Petition at 20.

66

Petitioner contends, “Mr. Hamrick’s ommission [sic] to present those
violations as listed above in Ground Five is so egregeous [sic] in nature that
the failure to raise 6th and 14th Amendment Rights violations within the
initial collaterial [sic] postconviction motion constitutes ineffective assistance
of counsel.” Id. To the extent Petitioner is attempting to raise a separate
claim of ineffective assistance of collateral counsel, this claim is due to be
denied. There is no constitutional right to counsel in post-conviction
proceedings; therefore, there is no viable, freestanding claim for the denial of
effective assistance in those proceedings. Chavez, 742 F.3d at 944. Indeed.
"[]Jongstanding U.S. Supreme Court precedent holds that a habeas petitioner
cannot assert a viable, freestanding claim for the denial of the effective
assistance of state collateral counsel in post conviction proceedings." Lambrix
v. Sec'y, Fla. Dep't of Corr., 756 F.3d 1246, 1263 (11th Cir. 2014) (citations
omitted), cert. denied, 574 U.S. 832 (2014), 575 U.S. 986 (2015).
Although Petitioner states he relies on Martinez, "Martinez did not...
create a freestanding claim for challenging a conviction or sentence based on
the alleged ineffective assistance of state post-conviction counsel." Lambrix,
756 F.3d at 1262 (footnote omitted). Thus, Petitioner fails to present a viable
claim for post-conviction relief. See 28 U.S.C. § 2254(i) ("The ineffectiveness
or incompetence of counsel during Federal or State collateral post-conviction

67

proceedings shall not be a ground for relief in a proceeding arising under
section 2254."). Therefore, ground six is denied.
In the alternative, to the extent Petitioner is simply attempting to rely
on Martinez to overcome his procedurally defaulted claims raised in his
Supplemental Petition, the Court has already addressed that assertion in
ground five (including the subclaims) and has concluded that the claims raised
in the Supplemental Petition are not substantial. Accordingly, Petitioner's
default is not excused and ground five (including the subclaims) is deemed
procedurally barred and ultimately defaulted. Therefore, ground six is due to
be denied as well.
Accordingly, it is now
ORDERED AND ADJUDGED:
1. Petitioner's Request for an Evidentiary Hearing (Doc. 22) is
DENIED.
2. The Petition (Doc. 1) and Supplemental Petition (Doe. 14) are
DENIED.
□□ This action is DISMISSED WITH PREJUDICE.
A, The Clerk shall enter judgment accordingly and close this case.
5. If Petitioner appeals the denial of his Petition (Doc. 1) and
Supplemental Petition (Doc. 14), the Court denies a certificate of

68

appealability.'0 Because this Court has determined that a certificate of
appealability is not warranted, the Clerk shall terminate from the pending
motions report any motion to proceed on appeal as a pauper that may be filed
in this case. Such termination shall serve as a denial of the motion.
wy.
DONE AND ORDERED at Jacksonville, Florida, this /~Z day of
July, 2021.

Zz LE “ oo □□ .
UNITEDSTAT HS DISERICT JUDE

sa 7/9
Cc:
Kenneth Karlston Newsome
Counsel of Record

'0 This Court should issue a certificate of appealability only if a petitioner makes "a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).. To make
this substantial showing, Petitioner "must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong," Tennard □□□
Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that "the issues presented were ‘adequate to deserve encouragement to proceed further,"
Miller-El v. Cockrell, 537 U.S. 322. 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880.
893 n.4 (1983)). Upon due consideration, this Court will deny a certificate of appealability.
69

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642115. Public record. Not legal advice.