Tramel v. Florida Attorney General (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL TRAMEL,

Petitioner,

v. Case No. 3:19-cv-1071-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Michael Tramel, a former inmate of the Florida penal system,1

initiated this action on September 11, 2019, by filing a Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 In the Petition,

Tramel challenges a 2013 state court (Duval County, Florida) judgment of

conviction for attempted second-degree murder and aggravated battery with a

deadly weapon. He raises ten grounds for relief. See Petition at 6-30.

Respondents submitted a memorandum in opposition to the Petition. See

1 Tramel began a one-year term of probation on October 26, 2021, that will

terminate on October 25, 2022. See Offender Search, Florida Department of

Corrections, (last updated May 15, 2022).

2 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

Response (Doc. 7). They also submitted exhibits. See Docs. 7-1 through 7-24.

Tramel filed a brief in reply. See Reply (Doc. 12). This action is ripe for review.3

II. Relevant Procedural History

On January 17, 2013, the State of Florida charged Tramel by amended

information with attempted first-degree murder (count one) and aggravated

battery with a deadly weapon (count two). Doc. 7-1 at 57. On March 14, 2013,

a jury found Tramel guilty of attempted second-degree murder, a lesser

included offense, and aggravated battery with a deadly weapon. Id. at 158-60.

On April 25, 2013, the trial court sentenced Tramel to concurrent eleven-year

terms of imprisonment followed by one-year terms on probation for counts one

and two. Id. at 169-75.

On direct appeal, Tramel, through counsel, filed an initial brief, arguing

that the trial court: (1) fundamentally erred when it gave conflicting jury

instructions on the duty to retreat; (2) fundamentally erred when it failed to

instruct the jury that the justifiable use of deadly force was a defense to

attempted second-degree murder; (3) erred when it denied the defense’s motion

3 Because Tramel is on supervised release, on April 25, 2022, the Court ordered

Tramel to file a motion to voluntarily dismiss if he no longer intended to pursue some

or all of the ten grounds for relief raised in his Petition. See Doc. 23. On May 9, 2022,

Tramel filed a document entitled “Motion of Intent to Continue Pursuing Case,”

requesting the Court rule on the merits of his Petition and “reverse” his convictions

and sentences. See Doc. 24.

2

for judgment of acquittal as to count two; and (4) fundamentally erred when it

failed to instruct the jury that the justifiable use of nondeadly force was a

defense to aggravated battery. Doc. 7-4. The State filed an answer brief. Doc.

7-5. On May 12, 2015, the First DCA affirmed Tramel’s conviction and sentence

for count two but reversed and remanded his conviction and sentence for count

one. Doc. 7-6 at 3. Relying on Floyd v. State, 151 So. 3d 452 (Fla. 1st DCA

2014), decision quashed, 186 So. 3d 1013 (Fla. 2016), the First DCA determined

that the trial court fundamentally erred when it gave conflicting jury

instructions on the duty to retreat. Doc. 7-6 at 7-8. Tramel filed a motion for

rehearing, and on August 14, 2015, the First DCA issued a revised opinion

reversing Tramel’s convictions and sentences for both counts one and two

because Tramel raised self-defense as his sole defense to both counts. Doc. 7-7

at 8.

The State invoked the discretionary jurisdiction of the Florida Supreme

Court, Doc. 7-8, and the First DCA stayed issuance of a mandate, Doc. 7-9 at

4. On June 24, 2016, the Florida Supreme Court granted the State’s Petition

for review, quashed the First DCA’s decision, and remanded the case for

reconsideration upon application of the court’s decision in Floyd v. State, 186

3

So. 3d 1013 (Fla. 2016).4 State v. Tramel, No. SC15-1597, 2016 WL 3459512,

at *1 (Fla. June 24, 2016). On February 16, 2017, the First DCA per curiam

affirmed Tramel’s convictions and sentences without prejudice to his right to

seek postconviction relief, Doc. 7-12, and the court denied his motion for

rehearing, Doc. 7-11 at 5. Subsequently, on May 15, 2017, the First DCA issued

the mandate. See onlinedocketsdca.flcourts.org, Michael Tramel v. State of

Florida, 1D13-2285 (Fla. 1st DCA).

On May 18, 2017, Tramel filed a pro se state petition for writ of habeas

corpus, raising five grounds of ineffective assistance of appellate counsel. Doc.

7-14 at 2-26. The First DCA denied the petition on the merits on November 9,

2017. Doc. 7-17.

On April 9, 2018, Tramel filed a pro se second amended motion for

postconviction relief under Florida Rule of Criminal Procedure 3.850.5 Doc. 7-

22 at 135-63. In his second amended Rule 3.850 Motion, Tramel raised ten

grounds for relief. See generally id. He alleged counsel was ineffective when he

4 On March 10, 2016, the Florida Supreme Court quashed the First DCA’s

decision in Floyd and remanded for further proceedings, determining the standard

instructions on the duty to retreat correctly stated the law and were not “confusing,

misleading, or contradictory with regard to the duty to retreat where there is a

question of fact as to who was the initial aggressor.” Floyd, 186 So. 3d at 1023.

5 Tramel filed his initial Rule 3.850 Motion on December 1, 2017. Doc. 7-22 at

5-33. The circuit court twice ordered Tramel to amend his Rule 3.850 Motion. Id. at

60-61, 129-30.

4

failed to: object to “governmental misconduct” and discharge Tramel (ground

one); challenge the violation of Tramel’s right to a speedy trial (ground two);

object to the denial of the defense’s motion to dismiss (ground three); present

a sufficient motion for judgment of acquittal (ground five); investigate and

impeach witnesses, as well as suppress evidence (ground six); object to the

amended information (ground seven); ensure Tramel had a representative jury

(ground eight); request and object to jury instructions (ground nine); and object

to Tramel’s conviction for a lesser included offense (ground ten). Id. at 136-62.

Tramel also alleged entitlement to relief based on changes to Stand Your

Ground6 in 2017 (ground four). Id. at 149-50. On May 4, 2018, the circuit court

summarily denied relief on all grounds. Id. at 206-14. The First DCA per

curiam affirmed the denial of relief without a written opinion on March 7, 2019,

Doc. 7-24 at 3, and issued the mandate on April 4, 2019, id. at 2.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

6 Fla. Stat. §§ 776.012, 776.032 (2017).

5

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.

The pertinent facts of this case are fully developed in the record before the

Court. Because the Court can “adequately assess [Tramel’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal petition for habeas corpus. See Ledford v.

6

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems,

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.

34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of

final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”

Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation

marks omitted)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he 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.

7

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision, such

as persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States;” or (2) “was based on

an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

8

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court's decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’”[7] Titlow, 571 U.S. at

---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.

290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

7 The Eleventh Circuit has described the interaction between §

2254(d)(2) and § 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821

F.3d 1270, 1286 n.3 (11th Cir. 2016).

9

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

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

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,

562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.

Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

adjudicated on the merits in the state courts, they must be evaluated under 28

U.S.C. § 2254(d).

B. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

10

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “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.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

11

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, - U.S. at -, 131 S. Ct.

at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question is not whether a federal court

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable - a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, - U.S. at -, 131 S. Ct. at 788.

12

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference — this one to a state court’s decision — when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

In ground one, Tramel alleges numerous “structural and otherwise

fundamental errors made by the government and appointed counsel” violated

his rights to due process and equal protection. Petition at 11. Tramel raised a

substantially similar claim in state court as ground one of his second amended

Rule 3.850 Motion. Doc. 7-22 at 136-40. In denying relief, the circuit court

noted Tramel’s claims were “varied and intermingled and very hard to decipher

and delineate,” so it “attempt[ed] to address them globally.” Id. at 207. The

circuit court explained in pertinent part:

Defendant alleges counsel was ineffective for failing to

object to governmental misconduct. Included in this

13

claim is his objection to his bond; to his not being

charged timely; to the courts allowing perjured

testimony; to the sufficiency of the evidence; to his

failure to have twelve jurors and to the state

misrepresenting facts in closing.

Initially, the Court notes [c]laims of trial court error

are not cognizable in a rule 3.850 motion. State v.

Coney, 845 So. 2d 120, 137 (Fla. 2003); Johnson v.

State, 985 So. 2d 1215, 1215 (Fla. 1st DCA 2008);

Swanson v. State, 984 So. 2d 629, 629 (Fla. 1st DCA

2008). Further, a defendant may not challenge the

admissibility, validity, or sufficiency of the evidence

against him in a motion seeking post conviction relief.

Betts v. State, 792 So. 2d 589, 590 (Fla. 1st DCA 2001);

see Smith v. State, 41 So. 3d 1037, 1040 (Fla. 1st DCA

2010) (“claims of insufficient evidence have long been

held to be procedurally barred in collateral

proceedings”). A defendant must raise these matters

on direct appeal. Hoppert v. State, 68 So. 3d 382, 382

(Fla. 2d DCA 2011). Defendant’s claims all include

language as to insufficient evidence a claim properly

raised on direct appeal. Defendant’s claim is not

cognizable under rule 3.850, and is, therefore,

procedurally barred.

The Defendant’s motion details that his discussion

with his counsel reflects that counsel felt it was a

better strategy to not use the “N” word. He now takes

issue with that advice and that strategy decision

because another witness used the “N” word.

As to other points raised in this claim, the record

reflects that at all times pertinent counsel filed the

appropriate motion to address these issues.

Specifically, the Defendant’s [m]otion for new trial

reflects that counsel objected to and raised many of the

14

issues the Defendant raises now. That motion was

denied by the court.

As to the merits of the claim regarding the prosecutor’s

comments, the proper method for reviewing the effect

and prejudice of the prosecutor’s comments is to place

them in context. Rose v. State, 985 So. 2d 500, 508

(Fla. 2008); Ham v. State, 580 So. 2d 868, 868 (Fla.

1991). . . .

. . . .

In the instant case, counsel did object in closing and

was overruled. Further, that issue as well as any

Giglio claim was raised in the Motion for New Trial as

well as was objected to during the trial.

At some point in the Defendant’s Motion, he argues

with the admittance of a knife that was in a casket. To

the extent that he is making an argument as to trial

court error, that is not cognizable in the instant

Motion. To the extent he is making an argument as to

ineffective counsel, the records show[] counsel objected

to this line of testimony but was overruled.

Id. at 208-10 (record citations omitted) (emphasis in original). The First DCA

per curiam affirmed the state circuit court’s denial of relief without a written

opinion. Doc. 7-24 at 3.

To the extent that the First DCA denied this claim on the merits,8 the

Court will address the claim in accordance with the deferential standard for

8 In looking through the appellate court’s per curiam affirmance to the circuit

court’s “relevant rationale,” the Court presumes that the appellate court “adopted the

same reasoning.” Wilson, 138 S. Ct. at 1194.

15

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Therefore, Tramel is not entitled to

relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Tramel’s claim does not have merit. If Tramel asserts

the various alleged errors deprived him of a fair trial, the Court finds, after a

review of the record, they did not render his trial fundamentally unfair.

Moreover, to the extent Tramel argues that the cumulative impact of his trial

counsel’s errors prejudiced him at trial, his claim is due to be denied. Where

all individual claims are meritless, the claim of cumulative error is also

without merit. Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir.

2012). As the Court explains below, each of Tramel’s individual claims lack

merit. Therefore, his claim of cumulative error fails, and relief on the claim in

ground one is due to be denied. See Tejada v. Dugger, 941 F.2d 1551, 1559

16

(11th Cir. 1991) (noting vague, conclusory, speculative, or unsupported claims

cannot support an ineffective assistance of counsel claim).

B. Ground Two

In ground two, Tramel contends counsel was ineffective when he failed

to challenge the violation of Tramel’s right to a speedy trial. Petition at 10-11.

According to Tramel, the trial court initially scheduled trial to begin on

December 10, 2012, approximately 172 days after his June 22nd arrest. Id. at

11. However, he claims his counsel at that time, Assistant Public Defender

Matthew Lufrano, was “unnecessarily ‘reassigned’/removed” from his case. Id.

Successor counsel, Assistant Public Defender Tomislov Golik, received

Tramel’s case on December 10th and requested a continuance of trial based on

his lack of familiarity with the case and his need to conduct additional

depositions. Id. Tramel argues this continuance prejudiced him because the

State subsequently filed an amended information on January 17, 2013,

charging him with an additional count, attempted first-degree murder. Id. at

12. Tramel avers he had several witnesses available to testify on his behalf on

December 10, 2012, and, in his view, the defense would have prevailed at trial.

Id. He also asserts that successor counsel filed a notice of expiration of trial.

17

Id. at 11. However, the trial court did not hold a hearing within five days,9

which divested it of jurisdiction. Id.

Tramel raised a similar claim in state court as ground two of his second

amended Rule 3.850 Motion. Doc. 7-22 at 141-44. In denying relief, the circuit

court explained in pertinent part:

Defendant alleges counsel was ineffective for violating

his speedy trial rights. It is clear from the record and

his motion that counsel was not prepared for the trial

of this magnitude within the speedy trial time.

Counsel filed a Notice of Expiration[;] however, as

counsel needed more time to depose all the witnesses[,]

the trial could not be held within the speedy trial time

and counsel was forced to move for a continuance. In

fact, despite counsel not having been able to depose

some state witnesses, the Defendant wanted to

proceed to trial.

Id. at 210 (record citation omitted). The First DCA per curiam affirmed the

denial of relief without a written opinion. Doc. 7-24 at 3.

To the extent that the First DCA denied this claim on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

9 Tramel presumably refers to Florida Rule of Criminal Procedure 3.191(p)(3)

which provides, “[n]o later than 5 days from the date of the filing of a notice of

expiration of speedy trial time, the court shall hold a hearing on the notice. . . .”

18

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Therefore, Tramel is not entitled to

relief on the basis of this claim.

Even assuming the appellate court’s adjudication of the claim is not

entitled to deference, Tramel’s ineffectiveness claim is without merit because

the record supports the postconviction court’s conclusion. On December 7,

2012, successor counsel moved for a continuance of the December 10th trial

because he received supplemental discovery from the State on November 30th,

and he needed to review the discovery and prepare for its use at trial. Doc. 7-1

at 53. Counsel also noted that the parties had not completed depositions. Id.

Notably, the supplemental discovery from the State included records of

Tramel’s telephone calls from the Duval County Jail, including

“statements…placing himself at scene of offense, arming himself, admitting

use of knife on victim, [and] various attempts to persuade/coerce

individuals/witnesses to provide statements favorable to [Tramel].” Id. at 51.

In a subsequent pretrial hearing, successor counsel further explained:

MR. GOLIK: Your Honor, at the time that – it

was December 10th that I made a motion for a

19

continuance. It was based on my having just

received the case file and not being ready to go

forward with trial. My client did not authorize

me to waive his speedy trial rights. I explained

to him that I simply could not go forward

unprepared and that I would be ineffective. At

that time the continuance was granted.

Id. at 197.

Based on the above, the Court finds counsel did not perform deficiently

when he moved for a continuance and waived Tramel’s right to a speedy trial.

See State v. Riechmann, 777 So. 2d 342, 365 (Fla. 2000) (noting defendant

waived his right to a speedy trial by taking a continuance); State v. Abrams,

350 So. 2d 1104, 1105 (Fla. 4th DCA 1977) (“The principle is well established

that the right to a speedy trial is waived when the defendant or his attorney

request a continuance.”). Pursuant to Florida law, counsel had the authority to

move for a continuance over Tramel’s objection. See McKenzie v. State, 153 So.

3d 867, 875 (Fla. 2014) (as revised on rehearing). It was also not unreasonable

for counsel to take such an action given the significance of the November 30th

discovery and his recent appointment to the case at that time.

The continuance of trial also did not prejudice Tramel. Such a delay

allowed counsel to file a motion to dismiss pursuant to Stand Your Ground on

January 23, 2013. Doc. 7-1 at 60-62. Further, Tramel only speculates the State

20

would not have been prepared to proceed with a trial on December 10th.

Habeas relief cannot be based on speculation. See Tejada, 941 F.2d at 1559;

Fayson v. Sec’y, Fla. Dep’t of Corr., 568 F. App’x 771, 773-74 (11th Cir. 2014)10

(finding petitioner could not demonstrate prejudice where “he merely

speculate[d] that, had counsel not waived his speedy trial right, the state would

have been unable to procure key witnesses for trial”).

Insofar as Tramel argues the trial court erred because it failed to comply

with Florida Rule of Criminal Procedure 3.191(p)(3), he presents a state law

claim that is not cognizable on federal habeas review. The purpose of a federal

habeas proceeding is to review the lawfulness of Tramel’s custody to determine

whether that custody is in violation of the Constitution or laws or treaties of

the United States. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (holding

errors of state law are not cognizable in federal habeas review); Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas

court to reexamine state-court determinations on state-law questions.”);

Coleman v. Thompson, 501 U.S. 722, 730 (1991). Thus, to the extent Tramel

10 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

21

claims the trial court erred under Florida law, such claim provides no basis for

federal habeas relief. See Estelle, 502 U.S. at 67-68; Allen v. Dep’t of Corr., 288

F. App’x 643, 645 (11th Cir. 2008) (noting where petitioner claimed he was not

brought to trial within the required time frame under Florida law, he stated

“at best only a state law speedy trial claim”). Accordingly, Tramel is not

entitled to federal habeas relief on ground two.

C. Ground Three

In ground three, Tramel argues counsel was ineffective when he failed

to seek a writ of prohibition based on the denial of the defense’s motion to

dismiss pursuant to Stand Your Ground. Petition at 13. He asserts that

competent, substantial evidence did not support the trial court’s ruling, and

the trial court used “an incorrect subjective standard of review.” Id.

Tramel raised a substantially similar claim in state court as ground

three of his second amended Rule 3.850 Motion. Doc. 7-22 at 144-49. In denying

relief, the circuit court reasoned:

Defendant asserts that trial counsel was ineffective for

failing to challenge the trial court’s denial of the

Motion to Dismiss based on “Stand Your Ground”

statute. The Defendant’s own motion rebuts his

entitlement to relief on this ground. The Defendant did

by all accounts not want to extend the period of time

to resolution. Defense counsel preserved the issue and

proceeded to trial as expeditiously as possible.

22

Id. at 210. The First DCA per curiam affirmed the denial of relief without a

written opinion. Doc. 7-24 at 3.

To the extent that the First DCA denied this claim on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Therefore, Tramel is not entitled to

relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Tramel’s claim does not have merit because counsel’s

failure to seek a writ of prohibition did not prejudice the defense. The question

of whether a Stand Your Ground defense was available to Tramel was properly

decided by the trial court. See Dennis v. State, 51 So. 3d 456, 464 (Fla. 2010).

The court considered and weighed all of the evidence and the testimony of the

witnesses. Doc. 7-1 at 437-39. Ultimately, the court concluded Tramel had not

23

demonstrated his entitlement to immunity by a preponderance of the evidence

and denied the motion to dismiss. Doc. 7-1 at 439.

The record reflects that the evidence supported the court’s denial of the

defense’s motion. At the pretrial immunity hearing, the defense presented

Tramel as a witness. Tramel testified he and Jonathan Key (Key), the victim,

engaged in a verbal altercation at the burial of Tramel’s brother, Enoch. Doc.

7-1 at 231. Key had a knife by his side. Id. A crowd of people came over to them,

and Key started walking towards Tramel. Id. Tramel pushed him. Id. He

testified Key then raised his hand, as if to punch Tramel, so Tramel punched

him. Id. at 232. Tramel walked backwards, and Key tackled him by the legs.

Id. at 233. Key’s brother, Malaki Stills, and his cousin then ran over to the pair

and began hitting Tramel. Id. Tramel ultimately threw Key off balance and

began walking to his vehicle. Id. at 234. However, Stills and Key continued to

pursue him, so Tramel grabbed a knife inside his vehicle. Id. at 234-35. Tramel

testified he put the knife in the back of his pants and told Stills to leave him

alone. Id. at 235. Stills backed away, but Key “c[ame] out of nowhere” and

punched Tramel. Id. at 236. Key tackled Tramel and attempted to reach for the

knife. Id. Tramel testified he then took the knife out of his pants and “h[e]ld[]

it by [Key’s] face.” Id. at 236-37. Key then ran away. Id. at 237. Tramel testified

24

he did not stab Key, and he “could only speculate” as to how Key sustained

injuries. Id. at 238. Tramel sustained a cut to his knee. Id. at 236, 239.

The State called multiple eyewitnesses from the burial. Angelina Key

(Angelina), Key’s sister, testified she saw Tramel and her brother together at

the burial. Id. at 313. She heard her brother say, “I’m not going to do this out

here, I’m not going to fight you.” Id. Tramel then shoved Key twice and punched

him. Id. at 314. Angelina observed Key lunge towards Tramel’s legs to “tackle

him down.” Id. Once bystanders broke up the initial altercation, she noticed

Tramel had a small knife. Id. at 315-16. Tramel went to his vehicle and

returned, walking towards Angelina’s other brother, Stills, with his hand

behind his back. Id. at 317-18. Stills put his hands in the air and walked

backwards while Tramel walked towards him. Id. at 318. Angelina testified

she then observed Key and Tramel engage in another altercation. Id. at 319.

Tramel and Key were facing each other, and Tramel had one hand on Key’s

shoulder. Id. at 319-20. Tramel stabbed Key with his other hand. Id. at 320.

Key slumped over and backed away from Tramel. Id. at 321. Angelina testified

Tramel had a large knife. Id. She further testified that she never saw Key with

a weapon, and she did not observe Key run up to Tramel’s vehicle. Id. at 325.

25

Eugene Lusco, the funeral director, testified he witnessed the initial

altercation between Tramel and a “smaller guy,” Key. Id. at 342-43. Both men

“[threw] punches at each other and start[ed] rolling over the ground. Id. at 343.

Bystanders stopped the fight, and Tramel moved quickly to his vehicle. Id. at

343-44. No one pursued Tramel. Id. at 344. Tramel came out of the vehicle with

an object that appeared to be a firearm. Id. at 345-46. Lusco testified Tramel

held his hand behind his back, but then he raised his hand up as he moved

towards Key. Id. at 346-47. At that time, Lusco saw Tramel had a knife, not a

firearm. Id. at 346. Key tried to walk away from Tramel, but Tramel ultimately

cornered Key. Id. at 348. “[T]hey got into an altercation, and somehow it

appeared that [Tramel] had wrapped his arms around [Key].” Id. Tramel then

stabbed Key approximately three times. Id. at 349. Lusco testified Key did not

have a weapon. Id. at 348, 359.

Karen Beere, the deceased’s girlfriend, testified during the initial

altercation, she saw Tramel punch Key. Id. at 370. Tramel and Key then

“locked together” until bystanders separated them. Id. at 370-71. She saw

Tramel had a pocketknife. Id. at 371. Tramel then jogged back to his vehicle,

where he put something in the back of his pants. Id. at 372. When he returned,

Beere saw Tramel had a knife. Id. She did not witness how the second

26

altercation began; however, she did see Key running across the cemetery and

falling to the ground. Id. at 373. Key did not have a weapon. Id. at 374.

Key also testified to his version of the events. Id. at 375-422. Before the

burial, Tramel approached Key to help him find Enoch’s murderer. Id. at 378.

Key initially agreed to help Tramel but stopped answering Tramel’s telephone

calls. Id. at 378-79. He testified that, at the burial, Tramel confronted him,

saying “You don’t understand it is what I actually do.” Id. at 383. Tramel

pushed him. Id. Key put his hands in the air, and stated “ Man, I ain’t trying

to fight you.” Id. Tramel again pushed him and reached for Key’s jacket. Id. at

384, Key showed Tramel he did not have a weapon, but Tramel proceeded to

punch Key in the jaw. Id. at 384. Key tried to tackle Tramel. Id. Bystanders

eventually separated the two men. Id. at 385. While he was “trying to gather

[him]self,” Key saw Tramel walking towards Stills with a knife. Id. Key walked

over to them and pushed Tramel to get him away from Stills. Id. Key and

Tramel began to fight, and by that time, Key thought Tramel had dropped the

knife. Id. at 387-88. Key tried to grab Tramel by the waist to tackle him, but

he could not get any leverage. Id. at 388. Key backed away, and Tramel stabbed

him in the stomach and in the side. Id. at 388-89. Key testified he did not have

a weapon. Id. at 389.

27

Based on the testimony of the witnesses at the immunity hearing, no

reasonable probability exists that the appellate court would have granted a

writ of prohibition. The eyewitnesses contradicted Tramel’s version of events.

Moreover, the single disinterested witness, Lusco, testified to a series of

altercations in which Tramel was the initial aggressor and Tramel could have

no reasonable belief that the force he used was necessary to prevent imminent

death or great bodily harm. Accordingly, Tramel is not entitled to relief on

ground three.

D. Ground Four

As ground four, Tramel contends the postconviction court erred when it

refused to retroactively apply a change in law to his case, thereby denying him

a “new” Stand Your Ground hearing. Petition at 15. According to Tramel, the

Florida Legislature amended Stand Your Ground to shift the burden of proof

to the State while his case was pending on direct appeal.11 Id. at 16. Tramel

argues the change in law should have applied retroactively to his case. Id.

11 In Bretherick v. State, 170 So. 3d 766, 768 (Fla. 2015), the Florida Supreme

Court determined that “the defendant bears the burden of proof, by a preponderance

of the evidence, to demonstrate entitlement to Stand Your Ground immunity at the

pretrial evidentiary hearing.” However, in 2017, the Florida Legislature adopted the

dissent in Bretherick, and amended Florida Statutes section 776.032(4) to provide

that “the burden of proof by clear and convincing evidence is on the party seeking to

overcome the immunity from criminal prosecution.”

28

Tramel raised a substantially similar claim in state court as ground four

of his second amended Rule 3.850 Motion. Doc. 7-22 at 149-50. In denying

relief, the circuit court stated:

Defendant claims the change of law in Stand Your

Ground should have applied retroactively. This claim

is not cognizable in the instant Motion.

Id. at 210. The First DCA per curiam affirmed the denial of relief without a

written opinion. Doc. 7-24 at 3.

To the extent that the First DCA denied this claim on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Therefore, Tramel is not entitled to

relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Tramel’s claim is without merit. The Florida Supreme

Court has determined that the statutory amendment shifting the burden of

29

proof to the State constitutes a procedural change in the law and does not apply

retroactively. Love v. State, 286 So. 3d 177, 184 (Fla. 2019). Instead, the

statutory amendment applies “to those immunity hearings, including in

pending cases, that take place on or after the statute’s effective date,” June 9,

2017. Id. at 188; see also Laws 2017, c. 2017-72, § 1, eff. June 9, 2017. Here,

the trial court held Tramel’s Stand Your Ground hearing on January 24, 2013.

Doc. 7-1 at 206. Therefore, the statutory amendment does not entitle him to a

new hearing. See Washington v. State, 296 So. 3d 567, 568 (Fla. 1st DCA 2020)

(holding that defendant was not entitled to a new immunity hearing where his

hearing occurred before the statutory amendment’s effective date).

Accordingly, Tramel is not entitled to habeas relief on ground four.12

E. Ground Five

Next, Tramel argues counsel was ineffective when he made an

insufficient motion for judgment of acquittal and an inadequate motion for new

trial. Petition at 17-18. He asserts counsel should have argued that the State

12 To the extent Tramel claims the postconviction court erred when it denied

ground four of his second amended Rule 3.850 Motion, his claim is not cognizable in

a petition for writ of habeas corpus. See Quince v. Crosby, 360 F.3d 1259, 1262 (11th

Cir. 2004) (noting that alleged errors in state postconviction proceedings are not

cognizable in a federal habeas proceeding).

30

did not offer any evidence to rebut Tramel’s claim of self-defense. Id. at 17.

According to Tramel, the State did not present any evidence “that showed [he]

was angry at Key, sought him out, then stabbed Key for no reason at all.” Id.

Tramel raised a similar claim in state court as ground five of his second

amended Rule 3.850 Motion. Doc. 7-22 at 150-54. In denying relief, the circuit

court explained in pertinent part:

Defendant claims counsel was ineffective for failing to

argue the Motion for Judgment of Acquittal

sufficiently. To be entitled to relief on such a claim,

Defendant must show that he “may very well have

prevailed on a more artfully presented motion.” White

v. State, 977 So. 2d 680, 681 (Fla. 1st DCA 2008).

“Where there is no showing that a motion for judgment

of acquittal had a likelihood of success, a movant has

not presented a facially sufficient claim of

ineffectiveness of counsel.” Neal v. State, 854 So. 2d

666, 670 (Fla. 2d DCA 2003) (citation omitted).

Additionally, counsel cannot be deemed ineffective for

failing to move for a judgment of acquittal where there

is sufficient evidence to support the defendant’s

convictions and the argument would have been

meritless. Ferrell v. State, 29 So. 3d 959, 976 (Fla.

2010) (citing Mungin v. State, 932 So. 2d 986, 997 (Fla.

2006)).

The Florida Supreme Court has said the following in

reference to motions for judgment of acquittal:

[a] defendant, in moving for a judgment of

acquittal, admits not only the facts stated

in the evidence adduced, but also admits

every conclusion favorable to the adverse

31

party that a jury might fairly and

reasonably infer from the evidence. The

courts should not grant a motion for

judgment of acquittal unless the evidence

is such that no view which the jury may

lawfully take of it favorable to the opposite

party can be sustained under the law.

Where there is room for a difference of

opinion between reasonable men as to the

proof or facts from which an ultimate fact

is sought to be established, or where there

is room for such differences as to the

inferences which might be drawn from

conceded facts, the Court should submit

the case to the jury for their finding, as it

is their conclusion, in such cases, that

should prevail and not primarily the views

of the judge. The credibility and probative

force of conflicting testimony should not be

determined on a motion for judgment of

acquittal.

Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974).

All the records attached as well as the record of the

Motion for Judgment of Acquittal show there was no

basis to grant said Motion. Counsel cannot be held

ineffective for failing to raise meritless argument or

motion. See Campbell v. State, 139 So. 3d 490, 498

(Fla. 2d DCA 2014).

Id. at 211 (record citation omitted). The First DCA per curiam affirmed the

circuit court’s denial of relief without a written opinion. Doc. 7-24 at 3.

To the extent that the First DCA denied this claim on the merits, the

Court will address the claim in accordance with the deferential standard for

32

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Accordingly, Tramel is not entitled to

relief on the basis of this claim.

Even assuming the appellate court’s adjudication of the claim is not

entitled to deference, Tramel’s claim does not have merit. The record

demonstrates counsel argued in his renewed motion for judgment of acquittal

that “the use of force . . . was justified based on the evidence.” Doc. 7-3 at 503.

In his amended motion for new trial, counsel further argued the trial court

erred when it denied the defense’s motion for judgment of acquittal and

renewed motion for judgment of acquittal. Doc. 7-1 at 165-66. Therefore,

counsel raised the issue in both motions.

Nevertheless, if counsel made an insufficient motion for judgment of

acquittal or motion for new trial, the motions would not have succeeded based

on the proposed arguments. Tramel initially argues the State failed to present

any evidence to establish his motive for stabbing Key. However, Key testified

33

Tramel sought to enlist him to assist in investigating Enoch’s murder. Doc. 7-

3 at 251. Key noted Tramel “was real interested in trying to make something

happen in a revenge like manner for his brother.” Id. Key agreed to help

Tramel; but, after considering the issue, decided that he did not want to help

and ignored Tramel’s telephone calls. Id. at 261. Key testified that Tramel

confronted him at the funeral and asked him why he had not answered

Tramel’s calls. Id. at 264. Key told Tramel that he did not want to be involved,

and Tramel responded, “[Y]ou don’t know what it is I do . . . You must really

don’t understand what I actually do.” Id. Key testified Tramel then pushed

him. Id. Given this testimony, the State presented sufficient evidence of

Tramel’s motive to submit the issue to the jury and to sustain the jury’s

findings.

Additionally, the State presented evidence to rebut Tramel’s self-defense

claim. Multiple eyewitnesses who attended the funeral testified that they did

not see Key with a knife or firearm during the altercations. Id. at 194, 236, 318.

Also, Dr. Albert Simpson, who officiated the burial service, testified he did not

witness anyone aggressively approach Tramel. Id. at 236. And, Latarsha

Turner, Key’s fiancé, stated she did not witness anyone attack Tramel. Id. at

218. Given the record evidence, the trial court would not have granted an

34

artfully drafted motion for judgment acquittal or motion for a new trial on the

proposed basis. Therefore, Tramel is not entitled to federal habeas relief on

ground five.

F. Ground Six

In ground six, Tramel argues counsel was ineffective when he did not

investigate and call witnesses, did not impeach State witnesses, and failed to

suppress evidence. Petition at 20. Tramel asserts he identified witnesses for

counsel to depose and identified deposition testimony for impeachment

purposes, but counsel did not depose or call those witnesses, and did not

properly impeach witnesses. Id. According to Tramel, counsel also should have

suppressed Tramel’s motive for the attack, as proposed by the State. Id.

Tramel raised a substantially similar claim in state court as ground six

of his second amended Rule 3.850 Motion. Doc. 7-22 at 154-56. In denying

relief, the circuit court explained in pertinent part:

Defendant claims his counsel did not investigate

witnesses; impeach witnesses; or suppress evidence. It

is unclear what suppression Motion the Defendant

wanted filed but “where defense counsel’s failure to

litigate a Fourth Amendment claim competently is the

principal allegation of ineffectiveness, the defendant

must also prove that his Fourth Amendment claim is

meritorious.” Zakrzewski v. State, 866 So. 2d 688, 694

(Fla. 2003) (citation omitted). See Johnston v. State,

63 So. 3d 730, 740 (Fla. 2011) (stating counsel cannot

35

be deemed ineffective when motion to suppress would

have been meritless).

As to the failure to investigate claim, actually the

motion itself indicates his counsel contacted all his

witnesses but did not depose them. There is no basis

for defense counsel to depose his own witnesses. There

does not appear to be a claim for failure to call a

witness, defendant must allege that “those witnesses

would in fact have been available to testify at trial.”

Nelson v. State, 875 So. 2d 579, 584 (Fla. 2004); see

Nelson v. State, 73 So. 3d 77, 88 (Fla. 2011)

(concluding witness availability integral to establish

prejudice). “[T]he failure to call witnesses can

constitute ineffective assistance of counsel if the

witnesses may have been able to cast doubt on the

defendant’s guilt, and the defendant states in his

motion the witnesses; names and the substance of

their testimony, and explains how the omission

prejudiced the outcome of the trial.” Beasley v. State,

18 So. 3d 473, 493 (Fla. 2009); see Nelson, 875 So. 2d

at 583. Finally, the records show[] counsel did in fact

impeach Mr. Key, the witness the Defendant claimed

lied.

Id. at 212 (record citation omitted). The First DCA per curiam affirmed the

denial of relief without a written opinion. Doc. 7-24 at 3.

To the extent that the First DCA denied this claim on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

36

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Therefore, Tramel is not entitled to

relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Tramel’s claim is without merit. The record

demonstrates Tramel insisted on proceeding with a trial despite the trial court

and counsel advising him that the defense had not completed depositions. The

trial court initially scheduled jury selection for January 22, 2013. At that time,

the trial court conducted a colloquy with Tramel:

THE COURT: It’s my intent to pick your jury this

afternoon at 1:00 o’clock and try the case Thursday

and Friday of this week.

Last week when we were all together, there was some

concern about – concerns about an issue. There was

some question about the status of discovery, and I just

want to make sure that the record is clear that you’re

wanting to go to trial this week regardless of the status

of preparation; is that correct?

THE DEFENDANT: That’s correct, Your Honor.

THE COURT: Okay. Mr. Golik, do you need to be

heard on that?

MR. GOLIK: No, Your Honor. I discussed with my

client that the witnesses were not deposed, the risks

associated with going forward without them, and we

feel that we are ready to go to trial.

37

THE COURT: And, Mr. Tramel, just so that I’m clear,

you want to do that because you believe it’s in your

best interest?

THE DEFENDANT: Well, I do, Your Honor, because—

and I’d also like to file a motion to stand your ground.

. . . .

THE COURT: Well, he talked about that on the record

when we were here before, and presumably he’s talked

about that with you in private.

And I just want to make sure that you’re satisfied with

the status of the case and want to go forward –

THE DEFENDANT: Actually –

THE COURT: –because you believe that to be in your

best interest in spite of the things I’ve been told, which

are that discovery may not be complete. Do you

understand that, sir?

THE DEFENDANT: I do understand that.

THE COURT: Okay. And you want to go forward with

trial; is that correct?

THE DEFENDANT: I do want to go to trial.

Doc. 7-2 at 17-19. The trial court then continued jury selection, so counsel could

file a motion to dismiss pursuant to Stand Your Ground. An immunity hearing

took place on January 24, 2013, and jury selection began on March 11, 2013.

Docs. 7-1 at 206; 7-3 at 5. Before jury selection, the parties again discussed

that the defense had not deposed all witnesses; however, Tramel still wanted

to proceed with a trial. Doc. 7-3 at 7-11. In the months before trial, Tramel

38

prioritized proceeding with a trial in an expeditious manner over obtaining

additional discovery. Therefore, it was not unreasonable for counsel to proceed

with a trial despite the status of discovery.

Tramel also argues counsel did not sufficiently impeach witnesses,

specifically Key. However, the record reflects that during trial, counsel

extensively cross-examined Key, id. at 282-308, and impeached him about his

statements to Tramel before the altercation, id. at 290-94. Moreover, insofar

as Tramel contends counsel should have filed a motion to suppress the

proposed motive for his actions, the record refutes his claim. Counsel objected

to Key’s testimony about Tramel’s motive during trial Id. at 252-53. The trial

court allowed the State to proffer the testimony and ultimately overruled

counsel’s objection. Id. at 254-59. Nevertheless, counsel succeeded in limiting

the testimony so the jury would not hear that Tramel asked Key to obtain

weapons to exact revenge on Enoch’s murderer. Id. at 259.

Based on the above, Tramel has failed to carry his burden of showing

that his counsel’s representation fell outside that range of reasonable

professional assistance. Even assuming deficient performance by defense

counsel, Tramel has not shown any resulting prejudice. Thus, his

ineffectiveness claim is without merit since he has shown neither deficient

39

performance nor resulting prejudice. Accordingly, Tramel is not entitled to

federal habeas relief on ground six.

G. Ground Seven

In ground seven, Tramel asserts counsel was ineffective when he did not

object to the amended information. Petition at 22. According to Tramel, the

amended information violated double jeopardy because the State charged him

with two offenses from a single episode. Id. at 23. Additionally, he claims that,

because the State filed the amended information after the expiration of speedy

trial, the trial court was divested of jurisdiction. Id.

Tramel raised a similar claim in state court as ground seven of his second

amended Rule 3.850 Motion. Doc. 7-22 at 156-58. In denying relief, the circuit

court explained:

Defendant claims his counsel did not object to [the]

amended information on double jeopardy grounds.

Counsel cannot be held ineffective for failing to raise a

meritless argument or motion. See Campbell v. State,

139 So. 3d 490, 498 (Fla. 2d DCA 2014).

Id. at 212. The First DCA per curiam affirmed the denial of relief without a

written opinion. Doc. 7-24 at 3.

To the extent that the First DCA denied this claim on the merits, the

Court will address the claim in accordance with the deferential standard for

40

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Therefore, Tramel is not entitled to

relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Tramel’s ineffectiveness claim is without merit. The

Eleventh Circuit has stated:

Where the same conduct violates two statutory

provisions, the first step in the double jeopardy

analysis is to determine whether the legislature . . .

intended that each violation be a separate offense.”

United States v. Smith, 532 F.3d 1125, 1128 (11th Cir.

2008) (quoting Williams v. Singletary, 78 F.3d 1510,

1512 (11th Cir. 1996)). If the legislative intent is

unclear, we apply the “same elements” test set forth in

Blockburger v. United States, 284 U.S. 299, 304, 52

S.Ct. 180, 76 L.Ed. 306 (1932). We have recognized

that the Blockburger test “is one of statutory

interpretation in which we examine the elements of

each offense to determine whether Congress intended

to authorize cumulative punishments.” United States

v. Williams, 527 F.3d 1235, 1240 (11th Cir. 2008).

Under that test, two offenses are different for double

jeopardy purposes “if each ‘requires proof of an

additional fact which the other does not.’” Smith, 532

41

F.3d at 1128 (quoting Cole v. United States Dep’t of

Agric., 133 F.3d 803, 805 (11th Cir. 1998)). In other

words, “if an offense requires proof of an element that

the other offense does not, we need look no further in

determining that the prosecution of both offenses does

not offend the Fifth Amendment.” United States v.

Hassoun, 476 F.3d 1181, 1186 (11th Cir. 2007).

United States v. Davis, 854 F.3d 1276, 1286 (11th Cir. 2017). Convictions for

attempted second-degree murder and aggravated battery with a deadly

weapon do not violate double jeopardy because attempted second-degree

murder requires proof of an element that aggravated battery with a deadly

weapon does not. See State v. Florida, 894 So. 2d 941, 949 (Fla. 2005), receded

from on other grounds by Valdes v. State, 3 So. 3d 1067, 1077 (Fla. 2009);

Schirmer v. State, 837 So. 2d 587, 589 (Fla. 5th DCA 2003) (“[A]ttempted

second degree murder requires proof of an act which could have resulted in

death–an element not required for aggravated battery.”).

Tramel also argues that the amended information was filed after the

expiration of speedy trial. As noted by the Court in ground two, the defense’s

motion for continuance waived speedy trial. Stewart v. State, 491 So. 2d 271,

272 (Fla. 1986) (“As the district court correctly stated, when a defendant

requests a continuance prior to the expiration of the applicable speedy trial

time period for the crime with which he is charged, the defendant waives his

42

speedy trial right as to all charges which emanate from the same criminal

episode.”). Nevertheless, any amendment to the information did not prejudice

the defense. Counts One and Two arose from the same series of events and

involved the same victim. Doc. 7-1 at 57. Moreover, the State filed an amended

information on January 17, 2013. Id. Tramel did not proceed to a trial until

March 11, 2013. Doc. 7-3 at 5. Accordingly, the State’s filing of the amended

information would not have prejudiced the defense’s preparation. Therefore,

Tramel is not entitled to federal habeas relief on ground seven.

H. Ground Eight

Next, Tramel asserts the State and counsel violated his right to a fair

trial because he did not have a representative jury. Petition at 24. According

to Tramel, “the [S]tate systematically struck and otherwise excluded each

African-American ven[ire] member despite their making up 1/3 of the jury

pool.” Id. Tramel contends counsel assisted the State by striking “the one (1)

Black juror who made the jury.” Id.

Tramel raised a substantially similar claim in state court as ground eight

of his second amended Rule 3.850 Motion. Doc. 7-22 at 158-59. In denying

relief, the circuit court stated in pertinent part:

Defendant claims his counsel did not [e]nsure [the]

jury had members of his race. The Defendant was

43

present during jury selection and it was not until after

all the jurors were selected that he indicated any

displeasure. This was brought to the court’s attention

by his counsel but nothing could be done at that point.

The Defendant at some point argues [the] trial court

committed error when he walked outside. The

Defendant is apparently referring to when the court

stepped outside to bring the jurors in[]to the

courtroom. There is not trial court error and certainly

no basis for counsel to object to such an action.

Id. at 212-13 (record citations omitted). The First DCA per curiam affirmed the

denial of relief without a written opinion. Doc. 7-24 at 3.

To the extent that the First DCA denied this claim on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Therefore, Tramel is not entitled to

relief on the basis of this claim.

Even assuming the appellate court’s adjudication of the claim is not

entitled to deference, Tramel’s claim does not have merit. He asserts “the

court’s forced selection process assisted the [S]tate” in systematically excluding

44

African American jurors. Petition at 24. However, the record shows otherwise.

After voir dire, the trial court explained the jury selection process:

If you have no challenges, the first six would be your

jury. And as a person is excluded, whether it be by

cause or peremptory challenge, the succeeding juror

would take that jurors place in numerical order.

Doc. 7-3 at 118. The record demonstrates the trial court simply used a selection

procedure based on juror numbers. Tramel fails to explain how such a

procedure caused or contributed to the exclusion of African American jurors.

Therefore, Tramel is not entitled to relief as to this claim.

Further, the State did not discriminately and unreasonably strike jurors.

Before counsel struck Juror 12,13 the State had only exercised one peremptory

challenge and three cause challenges. The State struck Jurors 4, 9, and 10 for

cause. Juror 4 indicated since his friend was a convicted felon, he did not think

that he could act as a fair and impartial juror. Id. at 68. He even expressed his

opinion that “the whole judicial system is – like, no offense – going to c**p.” Id.

Juror 9 stated that he had “an overall negative feeling” towards the State

13 Tramel alleges Juror 12 was “the one (1) Black juror who made the jury.”

Petition at 24. In his Reply, Tramel further alleges Jurors “9, 12, 15, 16, 17, 20, 25,

26, 27, 29, 30, and 35 were African-American.” Reply at 11. The record shows Jurors

1, 2, 3, 6, 7, and 13, were selected as jurors, and Juror 14 was selected as an alternate

juror. Doc. 7-3 at 123.

45

Attorney’s Office and that it would prevent him from acting as a fair and

impartial juror in the case. Id. at 87. The State challenged Juror 10 because

“she indicate[d] she would be overly sensitive, [and] [didn’t] feel like she would

be capable of handling the proceedings.” Id. at 120. Juror 10 also expressed her

belief that she could not act as a fair and impartial juror. Id. at 90. Based on

the record of voir dire, the Court cannot conclude the State exercised

challenges in a discriminatory manner.

Moreover, although counsel struck the only African American juror

likely to have made it on the jury, the record demonstrates counsel had

legitimate reasons for striking Juror 12. Juror 12 admitted to having health

problems, and noted:

But this time, I think that – I don’t think I would be

able to withstand – and be listening to what this

defense says and whatnot if I have to have pain. And

I’ve got pain pills now. I would love to, but I don’t think

so.

Doc. 7-3 at 96 (emphasis added). The Court cannot conclude counsel was

deficient for striking a juror who indicated he could not listen to the defense’s

arguments at trial. Accordingly, Tramel is not entitled to federal habeas relief

as to the claim raised in ground eight.

46

I. Ground Nine

In ground nine, Tramel argues counsel was ineffective when he “failed

to [e]nsure relevant jury instructions consistent with the law and evidence at

trial.” Petition at 26. According to Tramel, the trial court gave erroneous

instructions to the jury on Stand Your Ground, attempted manslaughter, and

justifiable homicide. Id. Tramel raised a substantially similar claim in state

court as ground nine of his second amended Rule 3.850 Motion. Doc. 7-22 at

160-61. In denying relief, the circuit court explained:

Defendant claims his counsel did not [e]nsure he had

the relevant jury instruction. The court notes, his jury

instructions were addressed on direct appeal. Further,

the transcript and record provided establish that the

Defendant used “Deadly force” and that is the

instruction that was given. He would not have been

entitled to an instruction on non-deadly force.

Id. at 213 (record citations omitted). The First DCA per curiam affirmed the

denial of relief without a written opinion. Doc. 7-24 at 3.

The First District Court of Appeal has determined:

When the evidence fails to establish as a matter of law

whether the type of force used was deadly or non-

deadly, the defendant is entitled to instructions on the

justifiable use of both types of force. Williams v. State,

727 So. 2d 1062 (Fla. 4th DCA 1999); Caruthers v.

State, 721 So. 2d 371 (Fla. 2d DCA 1998). The only

type of force that has been determined to be deadly as

47

a matter of a law is discharging a firearm. Williams,

727 So. 2d at 1063.

Mathis v. State, 863 So. 2d 464, 465 (Fla. 1st DCA 2004). Tramel did not

discharge a firearm in this case; therefore, Florida law required the trial court

to instruct the jury on the justifiable use of nondeadly force. Moreover,

although the postconviction court stated the jury instructions were addressed

on direct appeal, the First DCA explicitly affirmed Tramel’s convictions and

sentences without prejudice to his right to seek postconviction relief. Doc. 7-12.

In light of the fact that the postconviction court’s denial of relief rested

on finding that Tramel was not entitled to a nondeadly force instruction and

because the First DCA did not provide a written opinion, the Court presumes

the First DCA affirmed the denial of relief based on the postconviction court’s

finding. Wilson, 138 S. Ct. at 1192. However, since Tramel would have been

entitled to such an instruction, it does not appear as if deference is owed to this

adjudication. Nevertheless, under a de novo review, Tramel is not entitled to

relief because he cannot demonstrate prejudice. See Berghuis v. Thompkins,

560 U.S. 370, 390 (2010) (“Courts can, however, deny writs of habeas corpus

under § 2254 by engaging in de novo review when it is unclear whether AEDPA

deference applies, because a habeas petitioner will not be entitled to a writ of

habeas corpus if his or her claim is rejected on de novo review.”).

48

The Court concludes the failure to request a jury instruction on the

justifiable use of nondeadly force did not contribute to Tramel’s convictions or

sentences. Based on the evidence presented at trial, Tramel would not have

prevailed even if the trial court had issued the nondeadly force instruction. At

trial, Key described his wounds from his second altercation with Tramel. He

received three stab wounds to his shoulder, one wound to his lower back, and

a nine-inch wound across his stomach. Doc. 7-3 at 277-78. He testified that

there was blood everywhere and remembered applying pressure to the wounds

as his sister and girlfriend drove him to the hospital. Id. at 273-74. Angelina,

Key’s sister, also testified to driving with Key to the hospital after the incident,

and noted the vehicle’s back seat was “full of blood.” Id. at 193. Lusco, a

disinterested witness,14 testified he witnessed Tramel stab Key during the

pair’s second altercation:

Well, what I saw was that he hooked him around and

turned him around and with his other hand he

start[ed] stabbing him with the knife and every time

he thrust the knife it look like it raised him up off the

ground about a foot or so. I mean it was brutal and he

did it about two or three times.

14 Lusco was the funeral director. Doc. 7-3 at 325. He testified he was not

related to the parties, and he did not know them. Id. at 329.

49

Id. at 332 (emphasis added). The State also showed the jury images of the

vehicle’s back seat, as well as graphic images of Key’s wounds. Doc. 7-1 at 104-

121, 128.

The jury’s findings also support the conclusion that Tramel would not

have prevailed even if the trial court issued a nondeadly force instruction.

Florida’s standard jury instructions defines “nondeadly force” as “force not

likely to cause death or great bodily harm.” Fla. Std. Jury Instr. (Crim.) 3.6(g).

However, after hearing all of the evidence, the jury found Tramel guilty of

aggravated battery with a special finding that Tramel carried, displayed, or

used a deadly weapon during the commission of the offense. Id. at 160. The

jury instructions defined “deadly weapon” as one that is “used or threatened to

be used in a way likely to produce death or great bodily harm.”15 Id. at 145.

The jury also found Tramel guilty of attempted second-degree murder, which

required the jury to find Tramel engaged in an act that “was imminently

dangerous to another and demonstrating a depraved mind without regard to

human life.” Id. at 140. Such an act must be one that “a person of ordinary

judgment would know is reasonably certain to kill or do serious bodily injury

15 Jurors are presumed to follow jury instructions. United States v. Calderon,

127 F.3d 1314, 1334 (11th Cir. 1997).

50

to another.” Id. Based on the evidence and the jury’s findings, the Court cannot

conclude the failure to instruct the jury on the use of nondeadly force

prejudiced the defense. Accordingly, Tramel was not prejudiced by counsel’s

failure to request the instruction, and he is not entitled to relief.

To the extent Tramel also challenges, as confusing or contradictory, the

instructions on the duty to retreat pursuant to Stand Your Ground, his claim

does not have merit. The Florida Supreme Court determined the instructions

used in the instant case “accurately and correctly” explain the duty to retreat

“with regard to the factually complex situations where the jury must unwind

the facts to determine who was the initial aggressor.” Floyd, 186 So. 3d at 1020-

21. Accordingly, even assuming counsel should have objected to the

instructions, his failure to object did not prejudice the defense.

If Tramel challenges the placement of the justifiable use of deadly force

instructions after the jury instructions for Counts One and Two, the record

shows counsel specifically asked the trial court to place the instructions after

each count so the jury would understand they applied to all charges. Doc. 7-3

at 429-30. Accordingly, the Court cannot find counsel was ineffective for

addressing Tramel’s concerns.

51

To the extent Tramel contends counsel was ineffective when he did not

object to the jury instruction on attempted voluntary manslaughter because it

contains “an element of intent to kill,” his claim is due to be denied. Petition at

26. The trial court provided the following instruction:

In order to convict of Attempted Voluntary

Manslaughter it is not necessary for the State to prove

that the Defendant had a premeditated intent to cause

death.

Doc. 7-1 at 142. The trial court used the standard instruction for attempted

voluntary manslaughter, which specifically provides that the State need not

demonstrate intent to kill. Fla. Std. Jury Instr. (Crim.) 6.6. As such, counsel

had no basis to object to the instruction, and Tramel is not entitled to federal

habeas relief on ground nine.

J. Ground Ten

Next, Tramel contends counsel was ineffective when he did not object to

Tramel’s conviction for “depraved mind attempted murder.” Petition at 28.

According to Tramel, the amended information did not allege he acted with a

depraved mind, and the evidence did not support such a conviction. Id. at 28-

29.

52

Tramel raised a substantially similar claim in state court as ground ten

of his second amended Rule 3.850 Motion. Doc. 7-22 at 161-62. In denying

relief, the circuit court stated in pertinent part:

Defendant claims his counsel did not challenge the fact

that he was convicted of a crime not charged in the

Information. He further argues counsel should have

objected to the lesser included offense. The record

attached rebuts this allegation. Further, the

Defendant benefitted from the inclusion of a lesser

offense.

In essence, at trial the Defendant felt things were not

going as he wanted and he asked for a Nelson[16]

hearing. He raised issues of concern which were

addressed by the Court and Defense counsel and the

State responded. The main concern was he felt he had

not been returned all the copies of his depositions and

he wanted the testimony of Mr. Key impeached as to

his hospital stay. The State correctly argued since he

was not charged with great bodily harm, that

testimony would only have been relevant for

impeachment purposes. The issue was addressed and

counsel admitted he relied on the State’s subpoena.

Ultimately the Defendant changed his mind about not

testifying and decided to testify and was able to

present his testimony in addition[] to another

witnesses testimony as to his version of event[s].

Ultimately, the Defendant has failed to show that

there is a reasonable probability that had counsel

acted as the Defendant suggests he should have that

the outcome would have been any different.

Accordingly, this Court finds the Defendant has not

16 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).

53

established error on the part of counsel that prejudiced

his case. Strickland, 446 U.S. 668.

Id. at 213 (record citation omitted). The First DCA per curiam affirmed the

denial of relief without a written opinion. Doc. 7-24 at 3.

To the extent that the First DCA denied these claims on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudications

of these claims were not contrary to clearly established federal law, did not

involve an unreasonable application of clearly established federal law, and was

not based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Therefore, Tramel is not entitled to

relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudications of these claims

are not entitled to deference, Tramel’s claim does not have merit. Attempted

second-degree murder constitutes a category one necessarily lesser included

offense of attempted first-degree murder. Fla. Std. Jury Instr. (Crim.) 6.2.

“Necessarily lesser included offenses are those offenses in which the statutory

elements of the lesser included offense are always subsumed within those of

the charged offense.” Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006). The

54

trial judge must instruct the jury on a necessarily lesser included offense. State

v. Wimberly, 498 So. 2d 929, 932 (Fla. 1986). Here, counsel was not deficient

for not objecting to the lesser included offense. The trial court was required to

instruct the jury on the lesser included offense, and if counsel had objected, the

trial court would have overruled such an objection. Counsel cannot be

ineffective for failing to make a meritless objection. See Diaz v. Sec’y for the

Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005) (holding counsel cannot be

ineffective for failing to raise a meritless argument). Moreover, after a review

of the record evidence, the Court finds the State presented sufficient evidence

to support a finding that Tramel committed attempted second-degree murder.

Accordingly, Tramel is not entitled to federal habeas relief on ground ten.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Tramel seeks issuance of a certificate of appealability, the undersigned

opines that a certificate of appealability is not warranted. The Court should

issue a certificate of appealability only if the petitioner makes “a substantial

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

this substantial showing, Tramel “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims

debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting

55

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)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

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

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED

WITH PREJUDICE.

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2. Tramel’s Motion of Intent to Continue Pursuing Case (Doc. 24) is

DENIED as moot.

3. The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.

4. If Tramel appeals the denial of the Petition, the Court denies a

certificate of appealability. Because the 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.

5. The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 18th day of

July, 2022.

United States District Judge

Jax-9 5/26

C: Michael Tramel

Counsel of record

57