Wingard v. Secretary Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LOUIS ALEXANDER WINGARD,

Petitioner,

v. Case No. 3:21-cv-361-BJD-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

and FLORIDA ATTORNEY GENERAL,

Respondents.

_____________________________________

ORDER

I. STATUS

Petitioner, Louis Alexander Wingard (Wingard), an inmate of the Florida

penal system, initiated this action by filing a pro se Petition Under 28 U.S.C. §

2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1; Petition)

in the United States District Court for the Northern District of Florida. The

Petition was subsequently transferred to this Court, because the underlying

state court conviction is from Duval County, Florida. Docs. 1, 4. The Petition

raises nine grounds for relief. Doc. 1. Respondents filed a Response to the

Petition (Doc. 18; Response),1 and Petitioner filed a Reply to the Response (Doc.

23; Reply).2 Upon review, no evidentiary proceedings are warranted in this

Court.3

II. STANDARD OF REVIEW

A. Standard Under AEDPA

1 The Court refers to the exhibits attached to the Response as “Resp. Ex.,” and

uses the pagination of CM/ECF.

2 In the Reply, after addressing Respondents’ arguments, Wingard states:

Petitioner will stand on the arguments presented in his habeas petition.

Petitioner’s legal documents were misplaced and/or lost by institutional

staff. Petitioner has up to page 32 of document 18, (Response to Petition

for Writ of Habeas Corpus), which consist[s] of 62 pages. For that

reason, Petitioner incorporates all the arguments as raised in his

relevant pleading filed in his case, (Exhibit A-CC of Respondents

response).

Doc. 23 at 23. Previously, Wingard filed two motions for extension of time to file the

Reply, arguing that due to his transfer, he was missing his legal papers. Docs. 19,

21. Considering that Wingard did not seek any further extensions of time and was

able to file his 24-page Reply addressing Respondents’ arguments, the Court is

satisfied that this matter is ripe for review.

3 “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 Corrs., 834 F.3d

1299, 1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corrs., 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) (citation

omitted). “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.” Id. The Court finds that “further factual development” is

unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003). Thus, an

evidentiary hearing will not be conducted.

2

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

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

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

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘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)).

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

decision, if any, that adjudicated the petitioner’s claims on the merits. See

Marshall v. Sec’y Fla. Dep’t of Corrs., 828 F.3d 1277, 1285 (11th Cir. 2016).

The state court need not issue an 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:

[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. But the State may rebut the

presumption by showing that the unexplained affirmance relied or

most likely did rely on different grounds than the lower state

court’s decision, such as alternative grounds for affirmance that

were briefed or argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 584 U.S. 122, 125–26 (2018).

3

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim 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.” 28 U.S.C. §

2254(d)(1), (2). A state court’s factual findings are “presumed to be correct”

unless rebutted “by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for evaluating

state court rulings” and “demands that state-court decisions be

given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773

(2010) (internal quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes federal habeas

relief so long as fair[-]minded jurists could disagree on the

correctness of the state court’s decision.” Harrington, 562 U.S. at

101 (internal quotation marks omitted). “It bears repeating that

even a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Id. [at 102] (citing Lockyer

v. Andrade, 538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an unreasonable

application of law requires more than mere error or even clear

error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18 (2003);

Lockyer, 538 U.S. at 75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear error) with

unreasonableness.”); Williams v. Taylor, 529 U.S. 362, 410 (2000)

(“[A]n unreasonable application of federal law is different from an

incorrect application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253–54 (11th Cir. 2013) (internal

citations modified).

4

B. Exhaustion and Procedural Default

Before bringing a § 2254 habeas action in federal court, a petitioner must

exhaust all state court remedies that are available for challenging his state

conviction. See 28 U.S.C. § 2254(b)(1)(A). To do so, he must “fairly present[]”

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

(1989) (emphasis omitted). Thus, to properly exhaust their claims, “state

prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process,” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999),

thereby alerting the appropriate state court of “the federal nature of the

claim[s],” Baldwin v. Reese, 541 U.S. 27, 29 (2004). See also Pope v. Rich, 358

F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the state

collateral review process as well as the direct appeal process.”).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. Under the doctrine of procedural default:

[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 v. Thompson, 501 U.S. 722, 747–748 (1991); Wainwright

v. Sykes, 433 U.S. 72, 84–85 (1977). A state court’s invocation of a

procedural rule to deny a prisoner’s claims precludes federal

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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. 307, 316 (2011);

Beard v. Kindler, 558 U.S. 53, 60–61 (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.

Martinez v. Ryan, 566 U.S. 1, 9–10 (2012) (internal citations modified).

“To show cause, the petitioner must demonstrate ‘some objective factor

external to the defense’ that impeded his effort to raise the claim properly in

state court.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (quoting

Murray v. Carrier, 477 U.S. 478, 488 (1986)). Once cause is established, “the

petitioner also must show actual prejudice from the alleged constitutional

violation.” Id. (citing Sykes, 433 U.S. at 84). “[I]n order to show prejudice, a

petitioner must demonstrate that ‘the errors at trial actually and substantially

disadvantaged his defense so that he was denied fundamental fairness.’” Id.

(quoting McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (per

curiam)).

In the absence of a showing of cause and prejudice, a petitioner may still

receive consideration on the merits of a procedurally defaulted claim if he can

show that a fundamental miscarriage of justice would occur. As explained by

the Eleventh Circuit:

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“[I]n an extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually innocent,

a federal habeas court may grant the writ even in the absence of a

showing of cause for the procedural default.” Carrier, 477 U.S. at

496. “This exception is exceedingly narrow in scope,” however, and

requires proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.3d at 1157 (internal citations modified). “To meet this standard,

a petitioner must ‘show that it is more likely than not that no reasonable juror

would have convicted him’ of the underlying offense.” Johnson, 256 F.3d at

1171 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

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

performance falls below an objective standard of reasonableness and thereby

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

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

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

7

person must show that: (1) counsel’s performance was outside the wide range

of reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687. As explained in Richter:

To establish deficient performance, a person challenging a

conviction must show that “counsel’s representation fell below an

objective standard of reasonableness.” 466 U.S. at 688. 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. 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.

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. It is not enough “to show

that the errors had some conceivable effect on the outcome of the

proceeding.” Id. at 693. 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.

Richter, 562 U.S. at 104 (internal citations modified).

Notably, there is no “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 court need not address the performance prong if the

8

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.” 466 U.S. at 697.

“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 (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, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

“Reviewing courts apply a ‘strong presumption’ that counsel’s representation

was ‘within the wide range of reasonable professional assistance.’” Daniel v.

Comm’r, Ala. Dep’t of Corrs., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting

Strickland, 466 U.S. at 689). “When this presumption is combined with §

2254(d), the result is double deference to the state court ruling on counsel’s

performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

9

of Corrs., 703 F.3d 1316, 1333–35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. PERTINENT FACTS AND PROCEDURAL HISTORY

On November 18, 2011, Wingard was charged by Information with home

invasion robbery with firearm or deadly weapon in violation of section 812.135,

Florida Statutes, based on events that occurred on August 30, 2011. Resp. Ex.

A at 40. On January 27, 2012, through counsel, he moved to dismiss the

Information pursuant to Rule 3.140(g), Florida Rules of Criminal Procedure,

arguing that the Information was not supported by testimony under oath from

a material witness. Resp. Ex. A at 45–46. After a hearing on January 31, 2012,

the trial court denied the motion to dismiss for the reasons stated on the record.

Resp. Ex. A at 50; Resp. Ex. C at 68–86.

On March 12, 2012, through new counsel, Wingard again moved to

dismiss the Information pursuant to Rule 3.140(g), arguing that the minor

witness’s interview used by the State to support the Information did not rise

to testimony under oath from a material witness. Resp. Ex. A at 56–57. After

a hearing held on March 15, 2012, the trial court denied the second motion to

dismiss for the reasons stated on the record. Resp. Ex. A at 87–96; Resp. Ex.

C at 87–108.

10

On March 29, 2012, an Amended Information was filed, charging

Wingard with home invasion robbery with firearm or deadly weapon and

possession of a firearm by a convicted felon in violation of sections 812.135 and

775.087(2)(a)(1), Florida Statutes. Resp. Ex. A at 59. On August 21, 2012,

Wingard’s counsel moved to dismiss the Amended Information, pursuant to

section 907.045, Florida Statutes, and Rule 3.190(b), Florida Rules of Criminal

Procedure, for lack of subject matter jurisdiction based on the prosecutor’s

failure to comply with Rule 3.140(g). Resp. Ex. A at 76–78. Wingard’s counsel

argued that the State could not rely on the minor witness’s interview or on the

confession of co-defendant Alyssa Beck, which was “presumptively unreliable,”

to support the Amended Information. Id. at 77. On September 10, 2012, the

State moved to strike Wingard’s third motion to dismiss, arguing that at a

minimum, the filing of the Amended Information cured Wingard’s repeated

arguments for dismissal. Id. at 79–80. After a hearing on September 14, 2012,

the trial court denied Wingard’s third motion to dismiss for the reasons stated

on the record, including the sworn statements by the co-defendant and by the

child victim to the Child Protection Team (CPT). Resp. Ex. A at 81; Resp. Ex.

C at 109–42. Between January 8, 2013 and January 18, 2013, the State

amended the Information three times, concluding with the Fourth Amended

Information that charged Wingard with home invasion robbery with firearm

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or deadly weapon in violation of sections 812.135 and 775.087(2)(a)(1), Florida

Statutes, and with possession of a firearm by a convicted felon in violation of

sections 790.23(1)(a) and 775.087(2)(a)(1), Florida Statutes. Resp. Ex. A at

110, 112, 115.

A jury trial was held from February 5, 2013 to February 8, 2013. See

Resp. Ex. C at 178–202; Resp. Ex. F at 29–202; Resp. Ex. G at 7–202; Resp. Ex.

H at 3–110; Resp. Ex. I at 5–186. On the first day of trial, Wingard’s counsel

renewed the motion to dismiss as to the Fourth Amended Information, which

was summarily denied. Resp. Ex. F at 42. On February 8, 2013, the jury

returned a guilty verdict against Wingard on both counts as charged. Resp.

Ex. A at 170–73; Resp. Ex. C at 185, 197.

On February 15, 2013, Wingard’s counsel filed a motion for new trial.

Resp. Ex. A at 206–07; Resp. Ex. D at 8–20. Wingard, pro se, filed an amended

motion for new trial on March 22, 2013. Resp. Ex. B at 6–9. The same day,

the trial court held a hearing and denied both motions. Resp. Ex. A at 222;

Resp. Ex. B at 5 (stating that the denial of the amended motion for new trial

was without prejudice to Wingard raising any grounds for ineffective

assistance of counsel in a motion filed under Rule 3.850, Florida Rules of

Criminal Procedure); Resp. Ex. D at 8–20, 35–36. At the same hearing,

Wingard was adjudicated guilty on both counts and sentenced as a Prison

12

Release Reoffender (PRR) to a term of life imprisonment on Count One to run

concurrent with the 15-year term of imprisonment on Count Two. Resp. Ex. B

at 10, 13–17, 46; Resp. Ex. D at 4–45. On the same day, Wingard’s counsel

filed a notice of appeal to the First District Court of Appeal of Florida (First

DCA). Resp. Ex. B at 24–25. Wingard’s counsel filed an Initial Brief on June

12, 2013. Resp. Ex. J. The State filed its Answer Brief on October 22, 2013.

Resp. Ex. K. On January 24, 2014, the First DCA per curiam affirmed the trial

court’s decision without a written opinion. Resp. Ex. L at 2. The mandate was

issued on February 11, 2014 in Wingard v. State, 130 So. 3d 232 (Fla. 1st DCA

2014) (table). Resp. Ex. L at 3.

On March 4, 2014, Wingard, pro se, sought state habeas relief in the First

DCA, alleging ineffective assistance of appellate counsel. Resp. Ex. M. On

March 26, 2014, the First DCA per curiam denied the petition on the merits,

but without an explanation in Wingard v. State, 138 So. 3d 480 (Mem) (Fla. 1st

DCA 2014). Resp. Ex. N at 2. On April 4, 2014, Wingard, pro se, moved for

rehearing, which was denied without discussion on May 8, 2014. Resp. Ex. O.

On June 11, 2014, Wingard, pro se, filed a notice to invoke the discretionary

jurisdiction of the Florida Supreme Court to review the First DCA’s May 8,

2014 decision. Resp. Ex. P at 2–3. On June 19, 2014, the Florida Supreme

Court dismissed the case for lack of jurisdiction. Id. at 4–5.

13

Wingard, pro se, filed his first motion for post-conviction relief under

Rule 3.850 in the trial court on May 12, 2014, his amended motion on June 22,

2015, and his second amended motion on July 23, 2015. Resp. Ex. Q1 at 6–47,

53–84, 85–118. On November 24, 2015, the trial court entered an order

striking these motions and directing Wingard to file one comprehensive motion

for post-conviction relief not exceeding fifty pages. Id. at 119–22.

On January 19, 2016, Wingard, pro se, filed an Amended Motion for Post-

Conviction Relief pursuant to Rule 3.850, raising twenty-nine (29) grounds for

relief. Id. at 123–97. On March 2, 2017, the post-conviction court found ground

twenty-two (22) to be facially insufficient and granted leave to amend this

ground only. Id. at 198–200. On April 28, 2017, Wingard, pro se, filed an

Amendment to Ground Twenty-Two. Id. at 206–15. On June 13, 2017 (mailbox

rule), he filed a motion for leave to clarify grounds one (1) and twenty (20) of

his Amended Motion for Post-Conviction Relief, which was granted on

February 9, 2018. Id. at 216–17, 237–38. Wingard, pro se, filed a Clarification

of Grounds One and Twenty on July 6, 2017 (mailbox rule). Id. at 219–24. On

April 13, 2018, the post-conviction court granted leave to amend grounds

thirteen (13), twenty-three (23), and twenty-seven (27) of the Amended Motion

for Post-Conviction Relief. Id. at 239–42. On June 6, 2018 (mailbox rule),

Wingard, pro se, filed an Amendment to Grounds Thirteen, Twenty-Three, and

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Twenty-Seven. Id. at 243–51. On June 28, 2018, the post-conviction court

denied Wingard’s January 19, 2016 Amended Motion for Post-Conviction

Relief, his April 28, 2017 Amendment to Ground Twenty-Two, his July 6, 2017

Clarification of Grounds One and Twenty, and his June 6, 2018 Amendment to

Grounds Thirteen, Twenty-Three, and Twenty-Seven. Id. at 282–311.

On July 24, 2018, Wingard, pro se, filed a notice of appeal of the post-

conviction court’s June 28, 2018 decision to the First DCA. Resp. Ex. Q3 at

374–75. On March 12, 2019 (mailbox rule), Wingard, pro se, filed his Initial

Brief and supporting documentation. Resp. Ex. S at 2–77. On March 28, 2019,

the State filed a notice that it would not file an answer brief pursuant to

Florida Rule of Appellate Procedure 9.141(b). Resp. Ex. T at 2–3. On

November 25, 2019, the First DCA per curiam affirmed the post-conviction

court’s decision without a written opinion. Resp. Ex. U at 2–3. On December

20, 2019 (mailbox rule), Wingard moved for rehearing, which was denied on

January 23, 2020. Resp. Ex. V at 2–12. The mandate was issued on February

13, 2020 in Wingard v. State, 288 So. 3d 1190 (Fla. 1st DCA 2019) (table). Resp.

Ex. U at 4.

On March 23, 2020 (mailbox rule), Wingard, pro se, filed a petition for

habeas corpus in the First DCA, which was styled as “Memorandum of Law

and Facts in Support of the Motion for Special Review/Judicial Review.” Resp.

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Ex. V at 13–16. On June 29, 2020 (mailbox rule), Wingard, pro se, filed an

amended petition for writ of habeas corpus. Id. at 17–21. On September 15,

2020, the First DCA per curiam dismissed the amended petition for writ of

habeas corpus as unauthorized, citing Baker v. State, 878 So. 2d 1236 (Fla.

2004) (per curiam), in Wingard v. State, 311 So. 3d 979 (Mem) (Fla. 1st DCA

2020). Resp. Ex. V at 22–23. Wingard did not seek rehearing.

During the pendency of the state habeas proceedings in the First DCA,

on June 10, 2020 (mailbox rule), Wingard, pro se, filed a motion in the trial

court to correct his illegal sentence pursuant to Rule 3.800, Florida Rules of

Criminal Procedure, as to Count Two, arguing that possession of a firearm by

a convicted felon was not a qualifying offense for a PRR designation under

section 775.082(9)(a), Florida Statutes. Resp. Ex. Z at 2–7. On July 29, 2020,

the State filed a response, conceding that Count Two did not qualify for PRR

designation. Resp. Ex. AA at 2–3. On August 24, 2020, the trial court granted

Wingard’s motion to correct illegal sentence and directed his judgment and

sentence be amended to reflect that the PRR enhancement applied only to

Count One. Resp. Ex. BB at 2–4. Wingard’s judgment and sentence were

corrected on August 26, 2020 nunc pro tunc to March 22, 2013, to reflect that

the PRR enhancement applied only to Count One. Resp. Ex. CC at 2–9.

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IV. ANALYSIS

Wingard raises nine grounds for relief. Doc. 1. Grounds One and Five

have the same basis and will be addressed first.

Grounds One and Five

In Ground One, Wingard states as follows:

Whether the Trial Court erred in permitting the State to introduce

on rebuttal a very suggestive photo and web page.

Supporting facts:

The introduction of the above mentioned exhibits against Wingard

suggested a[n] inappropriate basis for the jury to make it[s]

decision and was highly unfair and very prejudicial to Wingard[’s]

Due Process Rights to a “Fair Trial” as well [as] to his Sixth

Amendment Constitutional Right to “Effective Assistance of

Counsel.” This lower court denial is contrary to Federal and State

law[;] thus, Wingard request[s] this Honorable Court review . . . all

claims raised within this Petition.

Id. at 5.

In Ground Five, he states as follows:

In Wingard[’s] issue one of his Direct appeal[,] Wingard contends

the Trial Court erred in permitting the state counsel to offer in

rebuttal exhibits of very suggestive and even offensive material as

evidence.

Supporting Fact:

In the instant case[,] the introduction of the above mentioned

exhibits against Wingard suggested a[n] inappropriate basis for

the jury to make its decision and was highly unfair and very

prejudicial to Wingard[’s] Due Process Rights to a Fair Trial as

well as to his Sixth Amendment Constitutional Right to Effective

Assistance of Counsel.

17

Id. at 24.

Wingard raised a similar claim as Issue I in his direct appeal Initial Brief

filed on June 12, 2013:

Whether the trial court erred in permitting the State to introduce

on rebuttal a very suggestive photograph and web page of a woman

standing in front of a Lincoln Navigator and the accompanying

web ad, over defense 90.403 objection[.]

Resp. Ex. J at 16 (all caps omitted).4 The First DCA per curiam affirmed

without a written opinion. Resp. Ex. L.

In presenting this issue to the First DCA, Wingard did not allege that

the trial court’s error violated any of his rights under the United States

Constitution, and, instead, relied solely on state law. See Resp. Ex. J at 16–

18. However, “in order to exhaust state remedies, petitioners must do more

than present ‘the state courts only with the facts necessary to state a claim for

relief’ and must additionally articulate the constitutional theory serving as the

basis for relief.” Henry v. Dep’t of Corrs., 197 F.3d 1361, 1366 (11th Cir. 1999)

(quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)). “If a habeas petitioner

wishes to claim that an evidentiary ruling at a state court trial denied him the

due process of law guaranteed by the Fourteenth Amendment, he must say so,

not only in federal court, but in state court.” Duncan v. Henry, 513 U.S. 364,

4 This issue was preserved by defense counsel’s contemporaneous objection at

the trial. See Resp. Ex. I at 11–12, 17.

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366 (1995) (per curiam). As Wingard made no argument or reference to the

United States Constitution or any decision by the United States Supreme

Court, he did not alert the state court of the federal nature of his claims,

thereby depriving the state court of a meaningful opportunity to review them.

See Baldwin, 541 U.S. at 29. Since future attempts to exhaust the claims

would be futile, the claims in Grounds One and Five are procedurally

defaulted. Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999) (per curiam).

Further, Wingard has demonstrated neither cause and prejudice nor a

miscarriage of justice to overcome the procedural default.5 Thus, Wingard is

not entitled to federal habeas relief on Grounds One and Five.

Ground Two

As Ground Two, Wingard states:

Whether the Trial Court erred in denying the defense motion to

offer surrebuttal testimony.

Supporting facts:

Wingard was given a fair opportunity to inform the lower court at

the time that he did not know the alleged woman (Katora) by the

5 To the extent Wingard attempts to raise new claims in his Reply, such claims

are not properly before the Court. See Rule 2(c), Rules Governing Section 2254 Cases

(“The petition must: (1) specify all the grounds for relief available to the petitioner . .

. .”); Herring v. Sec’y, Dep’t of Corrs., 397 F.3d 1338, 1342 (11th Cir. 2005) (“As we

repeatedly have admonished, ‘[a]rguments raised for the first time in a reply brief are

not properly before a reviewing court.’”) (collecting cases); see also Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (finding that a pro se

litigant abandoned an issue that was not raised in his initial brief as the court does

“not address arguments raised for the first time in a pro se litigant’s reply brief”).

19

name provided at the time. Moreover, the inflammatory evidence

may have swayed Wingard[’s] jury to convict him. This was not a

situation where Wingard sought to repeat what he said in his

testimony, but one [in] which he wanted to respond to something

new and highly prejudicial that was brought out by the State

opening the door for Wingard to attack it by moving as he did when

he requested for [sic] surrebuttal.

Doc. 1 at 7.

This claim was presented as Issue II in Wingard’s direct appeal Initial

Brief, filed on June 12, 2013:

Whether the trial court erred in denying the defense motion to

offer surrebuttal testimony[.]

Resp. Ex. J at 19 (all caps omitted).6 The First DCA per curiam affirmed

without a written opinion. Resp. Ex. L.

This claim was also presented as ground twenty-eight of Wingard’s

Amended Motion for Post-Conviction Relief. Resp. Ex. Q1 at 145–46. The trial

court denied relief, noting that the issue had been raised and affirmed on direct

appeal. Id. at 309. Wingard appealed, but did not raise this particular issue

in his Initial Brief filed in the First DCA on March 12, 2019. Resp. Ex. S at 2–

49.

By failing to include this claim in his optional Initial Brief filed on March

12, 2019, Wingard abandoned this claim on appeal. See Sutherland v. State,

6 The issue was properly preserved at the trial. See Resp. Ex. I at 37.

20

305 So. 3d 776, 779 (Fla. 1st DCA 2020) (finding that claims not addressed in

an appellant’s brief after a summary denial of a post-conviction motion were

abandoned); Watson v. State, 975 So. 2d 572, 573 & n.1 (Fla. 1st DCA 2008)

(per curiam) (stating that “when a defendant submits a brief in an appeal from

a summary denial of a postconviction motion, this Court may review only those

arguments raised and fully addressed in the brief,” but “if a defendant does not

file a brief when appealing the denial of his postconviction motion, this Court

is still required to investigate all possible means of relief”); see also Ward v.

State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009) (en banc) (per curiam) (finding

issues not raised in an appellant’s brief were abandoned, and, thus, receding

from Webb v. State, 757 So. 2d 608 (Fla. 5th DCA 2000) to the extent it

conflicted with Austin v. State, 968 So. 2d 1049 (Fla. 5th DCA 2007), on this

point). Because Wingard cannot return to the First DCA to exhaust this claim,

it is procedurally defaulted. See, e.g., Babichev v. Sec’y, Fla. Dep’t of Corrs.,

No. 3:19-cv-792-BJD-MCR, 2021 WL 6135192, *9–10 & n.7 (M.D. Fla. Dec. 29,

2021) (finding claims not fully briefed on appeal after a summary denial of a

post-conviction motion to have been abandoned and concluding that those

claims were unexhausted and procedurally defaulted).

Additionally, to the extent Wingard presented this claim in his Initial

Brief filed on June 12, 2013 and in the post-conviction court, he did not allege

21

that the trial court’s error violated any of his rights under the United States

Constitution, and, instead, relied solely on state law. See Resp. Ex. J at 19–

20; Resp. Ex. Q1 at 145–46. As Wingard made no argument or reference to the

United States Constitution or any decision by the United States Supreme

Court, he did not alert the state court of the federal nature of his claim, thereby

depriving the state court of a meaningful opportunity to review the claim. See

Baldwin, 541 U.S. at 29. Since future attempts to exhaust this claim would be

futile, the claim in Ground Two is procedurally defaulted. Bailey, 172 F.3d at

1303.

Further, Wingard did not exhaust this claim in his amended petition for

writ of habeas corpus, filed in the First DCA on June 29, 2020, where he

presented a similar issue as legal argument two. See Resp. Ex. V at 20–21

(“The Court [v]iolated the Petitioner’s 4th Amendment Rights by not allowing

the Petitioner an opportunity to argue rebuttal. . . . The lower court denied

the Petitioner[’]s or[e] t[e]nus motion for surrebuttal after the court allowed

the state to reopen its case with so called new evidence . . . .”). The First DCA

per curiam dismissed the amended petition for writ of habeas corpus as

22

unauthorized, citing Baker v. State, 878 So. 2d 1236 (Fla. 2004) (per curiam).7

Resp. Ex. V at 22–23. Wingard did not seek rehearing.

Because the First DCA relied on an independent and adequate state

procedural ground for the dismissal of Wingard’s amended petition for writ of

habeas corpus, he did not exhaust his claim and it is procedurally defaulted.

See Coleman, 501 U.S. at 734–35 & n.1 (stating that federal habeas courts will

consider a claim to be procedurally defaulted if it was presented in state court

and rejected on the independent and adequate state ground of procedural bar

or default); Cargile v. Sec’y, Dep’t of Corrs., 349 F. App’x 505, 507–08 (11th Cir.

2009) (per curiam) (stating that claims raised in state habeas petitions that

were dismissed under Baker as unauthorized were procedurally defaulted from

federal habeas review); see also Harvey v. Dixon, No. 4:24cv3-MW-HTC, 2024

WL 3432018, at *4 (N.D. Fla. July 11, 2024) (“Harvey also did not exhaust

7 In Baker, the Florida Supreme Court held that “[t]he remedy of habeas corpus

is not available in Florida to obtain the kind of collateral postconviction relief

available by motion in the sentencing court pursuant to rule 3.850.” 878 So. 2d at

1245. The court explained that it would start dismissing “as unauthorized, habeas

corpus petitions filed by noncapital defendants that seek the kind of collateral

postconviction relief available through a motion filed in the sentencing court, and

which (1) would be untimely if considered as a motion for postconviction relief under

rule 3.850, (2) raise claims that could have been raised at trial or, if properly

preserved, on direct appeal of the judgment and sentence, or (3) would be considered

a second or successive motion under rule 3.850 that either fails to allege new or

different grounds for relief, or alleges new or different grounds for relief that were

known or should have been known at the time the first motion was filed.” Id. at 1245–

46.

23

these grounds for relief in his state Petition for Writ of Habeas Corpus because

the First DCA summarily dismissed Harvey’s claims on an adequate and

independent state procedural ground – namely, that the claims should have

been raised on direct appeal or a 3.850 motion [pursuant to Baker].”), report

and recommendation adopted, 2024 WL 3432019 (N.D. Fla. July 15, 2024).

Importantly, Wingard has not shown cause and prejudice, or any factor

warranting the application of the fundamental miscarriage of justice exception

to overcome the procedural default. Accordingly, Wingard is not entitled to

federal habeas relief on Ground Two.

Ground Three

In Ground Three, Wingard states:

The Trial Court erred [in] denying Wingard’s Motion to Dismiss

[the] Charging Information.

Supporting facts:

Here, Wingard brought to the lower court’s attention that the state

attorney filed an Information that lack[s] Subject Matter

Jurisdiction. [U]pon researching this case[,] Wingard noticed that

the state counsel violated Fla. R. Crim. P. 3.140(g), [and] the

reason why is [because] the state attorney misrepresented the

facts by alleging that “Material Witnesses” had come forward

[which] given [sic] them power to submit the case to the Judge

whom [sic] believed Material Witnesses had been secured even

though they were not, this is a “Manifest Constitutional Error.”

Doc. 1 at 8.

24

Wingard presented a similar claim as ground one in his Amended Motion

for Post-Conviction Relief. Resp. Ex. Q1 at 124–27 (alleging that the trial

court’s error, inter alia, violated his Fifth and Fourteenth Amendment rights),

220–21 (presenting this claim as ineffective assistance of counsel claim in

Wingard’s clarification of ground one and stating that his Sixth and

Fourteenth Amendment rights were violated). The post-conviction court

summarily denied the claim as follows:

In Ground One, Defendant alleges the trial court erred by denying

his motion to dismiss the Information for lack of subject matter

jurisdiction. Specifically, Defendant asserts the State did not have

sworn testimony from a material witness to support the

Information and erred when it considered immaterial witness

testimony. Defendant claims the judgment is void as a result of

the defective Information.

Defendant’s claim is without merit. See Collins v. State, 97 So. 3d

305, 306 (Fla. 4th DCA 2012) (“We have seen numerous post-

conviction motions filed by prisoners arguing this same frivolous

issue which attempts to challenge the conviction based on

allegations that the state attorney failed to receive sworn

testimony from material witnesses before filing the information.”).

Further, Defendant raised this issue before trial, and this Court

repeatedly denied his motion to dismiss. (Ex. D; J.) Defendant did

not raise this issue in his direct appeal. (Ex. E.) Accordingly, he

is not entitled to relief on Ground One.[FN1: This Court also notes

that the State filed an amended Information after Defendant

objected. (Ex. H.) This mooted Defendant’s claims. See Williams

v. State, 182 So. 3d 11, 15–16 (Fla. 3d DCA 2015).] See State v.

McBride, 848 So. 2d 287, 290–91 (Fla. 2003).

Resp. Ex. Q1 at 283. Wingard appealed, and the First DCA per curiam

affirmed without a written opinion. Resp. Ex. S at 10–21; Resp. Ex. U.

25

Despite Wingard’s assertion of violation of his Fifth and Fourteenth

Amendment rights, this claim is entirely one of state law and thus not

cognizable for federal habeas review. See Branan v. Booth, 861 F.2d 1507,

1508 (11th Cir. 1988) (per curiam) (“Although petitioner alleges violations of

federal law, it is clear that this petition is based exclusively on state law issues

which are merely ‘couched in terms of equal protection and due process.’”

(citation omitted)); see also Paul v. Sec’y, Fla. Dep’t of Corrs., No. 3:18-cv-1032-

MMH-PDB, 2021 WL 2109114, *7 (M.D. Fla. May 25, 2021) (“This oath and

verification requirement [of Rule 3.140(g), Fla. R. Crim. P.] is a creature of

state law and not found in the United States Constitution. As such, whether

the charging documents comply with this state procedural rule is a matter of

state law only, and, thus, not cognizable in federal habeas proceedings.”);

Phillips v. Sec’y, Fla. Dep’t of Corrs., No. 3:15-cv-602-J-32JBT, 2018 WL

3974109, *6 (M.D. Fla. Aug. 20 2018) (“The requirement an information be

supported by a sworn statement of a material witness is a matter governed by

Florida procedural rules and statutes. Thus, [petitioner’s] allegations that the

circuit court violated state law is not proper for the Court’s consideration.”

(citations omitted)).

26

Further, to the extent Wingard argues that the state court lacked subject

matter jurisdiction because of the alleged infirmity in the Information, his

claim is without merit. As explained by the Eleventh Circuit:

“An indictment is considered legally sufficient if it: (1) presents the

essential elements of the charged offense, (2) notifies the accused

of the charges to be defended against, and (3) enables the accused

to rely upon a judgment under the indictment as a bar against

double jeopardy for any subsequent prosecution for the same

offense.” United States v. Jordan, 582 F.3d 1239, 1245 (11th Cir.

2009) (citation and quotations omitted). “In determining whether

an indictment is sufficient, we read it as a whole and give it a

‘common sense construction.’” Id. (citing United States v. Gold, 743

F.2d 800, 813 (11th Cir. 1984) and United States v. Markham, 537

F.2d 187, 192 (5th Cir. 1976)).[footnote omitted] “In other words,

the indictment’s ‘validity is to be determined by practical, not

technical, considerations.’” Jordan, 582 F.3d at 1245 (citing Gold,

743 F.2d at 812).

United States v. Schmitz, 634 F.3d 1247, 1259–60 (11th Cir. 2011) (footnote

omitted). Under this standard, the Information against Wingard was legally

sufficient to give the state court jurisdiction. Therefore, Ground Three must

be denied.

Ground Four

In Ground Four, Wingard states as follows:

Wingard was unlawfully delivered to state custody pursuant to

Fla. Stat. §§ 941.07, 941.10.

Supporting Facts:

The Governor of the State of Florida at the time of this case never

issued any type of warrant to arrest Wingard and thereafter

27

extradict [sic] him to face charge[s] in any other state court, “lower”

or “higher.”

This Prerogative under Interstate Cooperation is the Governor[’s]

duty[;] here[,] there is no evidence nor documents within the record

showing the complete process [that] took place to give the lower

state court jurisdiction to take such action against Wingard[,]

thereby depriving Wingard [of] Equal Opportunity of the law and

Due Process of Law.

Wingard avers that the Trial Court lacked [j]urisdiction in the

instant case because the State Attorney[’s] Office failed to properly

invoke the [j]urisdiction by not filing the proper pleadings needed

to allow the court to act thereto.

The [I]nformation was issued without securing sworn witness

testimony through a Federal Grand Jury nor [a] State Grand Jury.

The lower [c]ourt[’s] rulings are [c]ontrary to Federal and State

law[.]

Doc. 1 at 23.

Wingard presented a similar claim as ground two in his Amended Motion

for Post-Conviction Relief. Resp. Ex. Q1 at 127–28. The post-conviction court

summarily denied the claim as follows:

In Ground Two, Defendant asserts his extradition into state

custody from federal custody violated Federal law. Specifically,

Defendant contends the Florida Governor never issued an order

allowing Defendant’s arrest and extradition. Thus, Defendant

avers this Court never had jurisdiction over Defendant.

Defendant cites both Sections 941.07 and 941.10, Florida Statutes,

in support of his argument that his extradition was illegal and

deprived this Court of jurisdiction. However, both statutes detail

how the Governor of Florida shall respond when an out-of-state

authority makes an extradition request. Section 941.07 mandates

28

that the governor shall sign an arrest warrant and direct its

execution if he decides that an out-of-state request is valid. Section

941.10 prohibits extradition from Florida unless the accused is

first brought before a judge and informed of his rights. Neither

statute is applicable to Defendant’s case, as he was transferred

into the custody of the State of Florida.

Regardless, once a defendant has been returned to the demanding

state, “it is too late to litigate an issue which could and should have

been raised in . . . the asylum jurisdiction, prior to the return of

the appellant; or which could have been brought to the attention

of the trial court at the original adjudication.” Hunter v. State, 174

So. 2d 415, 416–17 (Fla. 1965). Accordingly, Defendant is not

entitled to relief on Ground Two. Frisbie v. Collins, 342 U.S. 519,

522–23 (1952).

Resp. Ex. Q1 at 283–84 (emphasis in original).

Wingard did not include this claim in his optional Initial Brief filed in

the First DCA on March 12, 2019. See Resp. Ex. S at 2–49. Therefore, this

claim was abandoned on appeal. See Sutherland, 305 So. 3d at 779; Watson,

975 So. 2d at 573 & n.1. Because Wingard cannot return to the First DCA to

exhaust this claim, it is procedurally defaulted. See Babichev, 2021 WL

6135192, at *9–10 & n.7. Further, Wingard has not shown cause and

prejudice, or any factor warranting the application of the fundamental

miscarriage of justice exception to overcome the default. Therefore, Ground

Four is denied as procedurally barred.

Ground Six

In Ground Six, Wingard states:

29

In Ground 23 of his pro se Fla. R. Crim. P. 3.850(a) [Motion,]

[c]ounsel was ineffective for failing to call Sharon Wingard and

Katora as . . . witness[es] to testify about his alibi.

Supporting Facts:

Wingard also incorporate[s] ground 26 to this ground sub claim “B”

[sic] Sharon Wingard and Katora were alibi witnesses for the

Petitioner. Sharon[’s] testimony would have placed the Petitioner

at home at the time of the crime commission and Katora[’s]

testimony would have supported Sharon[’s] observation. The

low[er] court simply denied it because he failed to advise the trial

court she would be available to testify (Katora).

Doc. 1 at 25.

Wingard presented a similar claim as ground twenty-three in his

Amended Motion for Post-Conviction Relief and in his amendment to ground

twenty-three. Resp. Ex. Q1 at 143–44, 245–46. To the extent Wingard now

incorporates ground twenty-six of his Amended Motion for Post-Conviction

Relief into Ground Six of his Petition, ground twenty-six read as follows:

Defendant was denied his Sixth Amendment right under the

United States Constitution to effective assistance of counsel,

because the cumulative errors counsel made during pre-trial and

jury trial cannot be excluded as harmless error.

The extreme amount of errors defense counsel [illegible] to the

amount of fundamental error that was to [sic] great to overcome

giving the jury no choice but to come back with a guilty verdict.

Resp. Ex. Q1 at 145.

The post-conviction court summarily denied grounds twenty-three and

twenty-six as follows:

30

In Ground Twenty-Three, Defendant asserts counsel was

ineffective for failing to call Defendant’s alibi witness, Sharon

Wingard. According to Defendant, Sharon Wingard would have

testified Defendant was at home when the alleged crime took place

and Defendant’s son was missing with Defendant’s phone prior to

the crime being committed. Defendant states Sharon Wingard was

available to testify and counsel knew about her. Defendant also

alleges counsel should have called Katura as a witness. Defendant

asserts Katura was available and would have testified that

Defendant only knew her by the name “Desire” and that she spoke

with Defendant’s son on Defendant’s cell phone prior to the alleged

crime. According to Defendant, Katura would have also testified

that she never picked up Defendant on the morning after the

alleged crime.

After Defendant testified and counsel rested, this Court asked

Defendant if he wanted counsel to call any other witnesses on his

behalf. (Ex. F at 676.) Defendant replied, “No, sir.” (Ex. F at 676.)

Accordingly, Defendant is not entitled to relief on Ground Twenty-

Three. McIndoo v. State, 98 So. 3d 640, 641–42 (Fla. 4th DCA

2012) (“Because his sworn motion indicates that he was aware of

the witness and that witness’s testimony prior to trial, the colloquy

to the court conclusively refutes his claim that his attorney failed

to call a known witness against the appellant’s wishes.”).

. . .

In Ground Twenty-Six, Defendant alleges the cumulative effect of

counsel’s errors amounted to ineffective assistance of counsel. This

Court has reviewed Defendant’s claims and determined that

counsel was not ineffective. “Where the alleged errors urged for

consideration in a cumulative error analysis are individually

either procedurally barred or without merit, the claim of

cumulative error also necessarily fails.” Hurst v. State, 18 So. 3d

975, 1015 (Fla. 2009) (internal quotations and citations omitted).

Accordingly, Defendant is not entitled to relief on Ground Twenty-

Six.

Resp. Ex. Q1 at 307, 309.

31

Wingard did not include these claims in his optional Initial Brief filed in

the First DCA on March 12, 2019. See Resp. Ex. S at 2–49. Therefore, these

claims were abandoned on appeal. Sutherland, 305 So. 3d at 779; Watson, 975

So. 2d at 573 & n.1. Because Wingard cannot return to the First DCA to

exhaust these claims, the claims are procedurally defaulted. See Babichev,

2021 WL 6135192, at *9–10 & n.7. Further, Wingard has not shown cause and

prejudice, or any factor warranting the application of the fundamental

miscarriage of justice exception to overcome the default. Therefore, Ground

Six is denied as procedurally barred.

Ground Seven

In Ground Seven, Wingard states as follows:

Sub Claim “A”

[In] Ground Three (3) of [his] Rule 3.850(a)[,] Fla. R. Crim. P.[,]

motion[,] Wingard was denied his Sixth [A]mendment right under

the United States Constitution by [c]ounsel[’s] fail[ure] to exclude

the non-material witness.

Supporting facts:

Here[,] the Petitioner bring[s] to this Honorable Court[’]s attention

[the] lower court[’]s ruling that is contrary to federal and State law

on the basis of a lack of Subject Matter Jurisdiction.

Wingard moved the lower [c]ourt to dismiss the [I]nformation

under attack within this Petition because the lower court failed to

properly apply the law when it comes to sworn testimony of a

witness and what[’]s [supposed] to be done. In this case [sic]

“No Material Witness” was obtain[ed] and once Wingard advised

Defense Counsel to object to the introduction of a witness (Beck)

32

on behalf of the state whom [sic] the state alleged was a material

witness whom [sic] would testify as to what was observed by them,

beyond what was heard from others[’] reflective thoughts. Counsel

failed to exclu[de] the non-material witness once Defense Counsel

became aware the witness was not. Wingard[’s] counsel became

ineffective by failing to object to the witness[’s] statements and to

use [them] as rel[e]vant evidence to articulate grounds for

dismissal.

A witness that testify [sic] about subject matters, events, is

hearsay when it did not come from the alleged witness[’s] personal

observation of the altercation, and/or [s]ubject matter.

Doc. 1 at 26.

Wingard presented this claim as ground three in his Amended Motion

for Post-Conviction Relief. Resp. Ex. Q1 at 128–29. The post-conviction court

summarily denied relief as follows:

In Ground Three, Defendant alleges counsel was ineffective for

failing to object when the State argued that Alyssa Beck’s

testimony before a grand jury qualified her as a material witness.

Specifically, Defendant alleges counsel was deficient because Beck

testified in a federal case unrelated to Defendant’s. Defendant

claims prejudice because the State was allowed to prosecute

without obtaining an information based upon the sworn testimony

of a relevant material witness.

A witness’s grand jury testimony may be admitted as substantive

evidence at trial. Moore v. State, 452 So. 2d 559, 562 (Fla. 1984).

Thus, Beck’s testimony before a federal grand jury constituted

sworn testimony sufficient to establish probable cause for the

Information. Id.

Further, this Court did not deny Defendant’s motion to dismiss

solely based upon Beck’s grand jury testimony:

33

[This Court]: I think on a number of grounds, I’m

pretty comfortable denying the motion on legal basis.

[Number one,] Grand Jury testimony is clearly

sworn, okay, and it was done with no basis to dispute

that it did not occur before the filing of the

information, all right.

Secondly, and a child witness, who -- I have not

reviewed in camera the testimony, but I take

representations from [defense counsel] and that it

appeared that she knew the difference between truth

and a lie and, therefore, that would also constitute a

sworn statement.

And the third reason is I am reading -- it’s not

particularly elaborate in [sic] as far as it’s [sic]

explanation the [sic] State v. Pendergrass, but it does

seem to say, you know what, the issue is moot now [sic]

they took a writ of service or something like that.

And they -- you know, it says it’s moot because

you filed an amended information after you obtained

new sworn statements.

And so f[o]r all those reasons it appears to me

that the motion should be denied at this point.

(Ex. D at 13–14.)8

Finally, there is no reasonable possibility that the ultimate

outcome of the proceedings would have been different had counsel

objected. See Williams v. State, 182 So. 3d 11, 16 (Fla. 3d DCA

2015). As counsel conceded at the hearing, the State would have

been able to refile the charges had this Court granted Defendant’s

motion.[FN2: As this Court previously noted, the State did

ultimately file an amended Information. (Ex. H.)] See State v.

Pendergrass, 997 So. 2d 518, 518 (Fla. 1st DCA 2008). Further,

based upon Beck’s trial testimony, she was a material witness.

(Ex. F at 257–63.) Accordingly, Defendant is not entitled to relief

on Ground Three.

8 This internal block quote is in Resp. Ex. C at 80–81.

34

Resp. Ex. Q1 at 284–85.

Wingard then presented this claim as Issue II in his Initial Brief filed on

March 12, 2019. Resp. Ex. S at 21–29. The First DCA per curiam affirmed

without a written opinion. Resp. Ex. U. Because the First DCA affirmed

without a written opinion, the Court presumes the affirmance was based on

the post-conviction court’s findings. See Wilson, 584 U.S. at 125–26 (holding

that where the relevant state court decision on the merits does not provide any

rationale for its decision, “the federal court should ‘look through’ the

unexplained decision to the last related state-court decision that does provide

a relevant rationale” and “should then presume that the unexplained decision

adopted the same reasoning”).

As the post-conviction court decided this claim on the merits, the Court

addresses this claim in accordance with the deferential standard for federal

court review of state court adjudications. Upon thorough 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. As discussed earlier, the issue of whether the State complied with

Rule 3.140(g), Florida Rules of Criminal Procedure, as far as receiving

35

testimony under oath from material witnesses to support the charging

document, is a matter of state law. This Court “must defer to the state’s

construction of its own law” when the validity of the claim that counsel failed

to raise turns on state law. Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (2017)

(internal quotation marks and citation omitted).

Here, the post-conviction court found Beck was a material witness who

gave sworn testimony sufficient to establish probable cause for the

Information, but even assuming this finding was an error, the trial court noted

that it denied Wingard’s motions to dismiss for additional reasons. Resp. Ex.

Q1 at 284–85. Moreover, as the post-conviction court noted, Wingard could not

establish prejudice as a result of counsel’s failure to object to Beck’s testimony,

because there was no reasonable possibility the outcome of the proceedings

would have been different, considering that the State would have been able to

refile the charges, which the State actually did. Id.; see also Resp. Ex. C at

116–18 (noting that at the September 14, 2012 hearing on Wingard’s motion

to dismiss, his counsel conceded there was caselaw allowing the State to cure

defects in a charging document by filing an amended information). Wingard

has not shown that trial counsel was deficient for failing to object to Beck’s

testimony or that he was prejudiced as a result of any deficient performance

under Strickland. See Diaz v. Sec’y for Dep’t of Corrs., 402 F.3d 1136, 1142

36

(11th Cir. 2005) (holding that counsel was not ineffective for failure to raise a

meritless argument). Thus, Wingard is not entitled to federal habeas relief on

Ground Seven.

Ground Eight

In Ground Eight, Wingard states:

Sub Claim “B”

Wingard contend[s] that the Trial Court has [d]eprived him of his

Constitutional Right to Effective Assistance of Trial Counsel and

Due Process of law a [sic] (Fair Trial).

Supporting Facts:

The content alle[ged] to have been rel[e]vant to the [j]ury

determination of the [g]uilt or [i]nnocence of Wingard was

admitted over an objection of the [d]efense.

The Trial Court admitted phone records alle[ged] to show a

connection to witness “Katora” [alleged] to have been a girlfriend

of Wingard[,] however, [they] should not have been admitted as a

summary exception to the [d]efense objection to hearsay, simply

because a number of a person alle[ged] to have been a girlfriend of

another person does not by itself make it the truth of the matter

asserted.

Moreover, Wingard contend[s] the actions [taken] by the Trial

Court deprived him of effective assistance of counsel by overruling

the court appointed counsel[’s] objection in front of his [j]ury,

[which] may have lead [sic] the [j]ury to convict him on that

evidence to corroborate other alle[ged] evidence by the state. The

phone records were clearly irrelevant of the court’s main issue

here, which is “whether” or “not” Wingard committed the convicted

crimes[.]

The Trial Court[’s] determination is contrary to State and Federal

law. 6th, 14th Const. Amend.

37

Doc. 1 at 27.

Wingard presented a somewhat similar claim as ground sixteen in his

Amended Motion for Post-Conviction Relief. Resp. Ex. Q1 at 139–40. The post-

conviction court summarily denied relief as follows:

In Ground Sixteen, Defendant alleges counsel was ineffective

because she was unprepared. Specifically, Defendant complains

counsel was deficient because she provided no defense when the

State introduced Defendant’s phone records into evidence.

Defendant claims prejudice because he was entitled to a mistrial.

During Steven Venable’s testimony, the State attempted to

introduce Defendant’s phone records into evidence. (Ex. F at 508–

09.) Counsel objected on hearsay grounds and, after approaching

the bench, informed this Court that she did not have the records

the State was entering into evidence. (Ex. F at 509.) She did not

argue that the State had failed to provide the records, just that

there had been some kind of error when she inherited the case from

previous counsel. (Ex. F at 509.) In response, the State suggested

counsel be given time to review the records and, if necessary, that

she be able to question the witness before the State continued its

direct examination. (Ex. F at 510.) Counsel, alongside Defendant,

then spent twenty to thirty minutes reviewing the records and

questioning the witness. (Ex. F at 512–13.)

Defendant has failed to show prejudice because nothing in the

record indicates that counsel’s trial preparation or strategy would

have been different had counsel obtained the records before trial.

See Lasiak v. State, 966 So. 2d 983, 984 (Fla. 5th DCA 2007). The

records merely detailed subscriber information for a cellular phone

listed in Defendant’s name. (Ex. F at 518–19.) Counsel knew the

State would be using Defendant’s phone records against him. (Ex.

F at 515–16.) Further, counsel had time to review these records

and depose this witness, and nothing in the record suggests a

reasonable possibility that the ultimate outcome of Defendant’s

trial would have been different had counsel reviewed these records

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and deposed this witness prior to trial. Accordingly, Defendant is

not entitled to relief on Ground Sixteen.

Resp. Ex. Q1 at 298–99.

Wingard did not include this claim in his optional Initial Brief filed on

March 12, 2019. See Resp. Ex. S at 2–49. Therefore, the claim was abandoned

on appeal. Sutherland, 305 So. 3d at 779; Watson, 975 So. 2d at 573 & n.1.

Because Wingard cannot return to the First DCA to exhaust this claim, the

claim is procedurally defaulted. See Babichev, 2021 WL 6135192, at *9–10 &

n.7. Further, Wingard has not shown cause and prejudice, or any factor

warranting the application of the fundamental miscarriage of justice exception

to overcome the default. Therefore, Ground Eight is denied as procedurally

barred.

Ground Nine

In Ground Nine, Wingard states:

Sub Claim “C”

The Trial Court erred when it denied Wingard[’s] Motion to

Dismiss Charges contain[ed] in the [I]nformation which lacked

Subject Matter Jurisdiction[.]

Supporting Facts:

The trial court classified the video interview as a colloquy and the

statements made were considered to be sworn testimony made

under oath by a material witness Chloe Smith and the C.P.T.

workers. This was a pure violation of Fla. R. Crim. P. 3.140(g) and

the Trial Court failed to properly apply the [l]aw of the rule to this

[illegible] Smith was asked during the video “if she understood a

39

truthful statement from a lie” and the above classification of the

statement was made by the Trial Court.

The court appointed counsel took no action rendering counsel

ineffective at this stage of the criminal [p]rocedures.

Doc. 1 at 28.

To the extent this claim overlaps with Ground Three in the Petition, it

is denied for the reasons stated in Ground Three. Also, to the extent Wingard

contends that his counsel was ineffective for failing to object to the trial court’s

acceptance of testimony from Chloe Smith and the C.P.T. workers pursuant to

Rule 3.140(g), Wingard did not present such claim in his Amended Motion for

Post-Conviction Relief. Resp. Ex. Q1 at 123–48. Because this claim was

presented for the first time in this Court, it is unexhausted and procedurally

defaulted.

Further, Wingard has not shown cause and prejudice, or any factor

warranting the application of the fundamental miscarriage of justice exception

to overcome the default. Notably, Wingard has not shown that his underlying

ineffective assistance of counsel claim is a substantial one to overcome the

default. See Martinez, 566 U.S. at 16 (stating that a claim is “insubstantial” if

“it does not have any merit or . . . is wholly without factual support”). Contrary

to Wingard’s claim, the transcripts of the hearings on his motions to dismiss

on January 31, 2012, March 15, 2012, and September 14, 2012, show that his

40

counsel did in fact argue that the child’s statements in the CPT video were

unsworn and the child did not qualify as a material witness under Rule

3.140(g). Resp. Ex. A at 89–90, 93–94; Resp. Ex. C at 72–73, 112–13. Because

Wingard’s counsel actually raised this argument, Wingard’s claim to the

contrary is not substantial. See Hittson v. GDCP Warden, 759 F.3d 1210,

1269–70 (11th Cir. 2014). Therefore, Ground Nine is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED and this action is DISMISSED

WITH PREJUDICE.

2. The Clerk of Court shall enter judgment dismissing this action

with prejudice and close this case.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability.9 Because the Court has determined that a certificate of

appealability is not warranted, the Clerk shall terminate from the pending

9 The 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 v. 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 of the record as a whole, this Court will deny a certificate of

appealability.

41

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.

DONE AND ORDERED at Jacksonville, Florida, this 3rd day of

September, 2024.

Fl Aaa. A sal BA BAT pean,

BRIAN/I, DAVIS

United States District Judge

Jax-11 8/30

C:

Louis Alexander Wingard, #099352

Counsel of Record

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