Mills v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

HENRY COLDRIDGE MILLS,

Petitioner,

v. Case No. 3:19-cv-872-TJC-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, is proceeding on a pro

se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1). He

challenges a state court (Duval County, Florida) judgment of conviction for

three counts of attempted second-degree murder, possession of a firearm by a

convicted felon, and discharging a firearm from a vehicle. He is serving a

twenty-year prison sentence. Respondents filed a Response (Doc. 5) with

exhibits (Docs. 5-1 to 5-18; “Resp. Ex.”).1 Petitioner filed an Amended Reply

(Doc. 11).

1 The Court cites to the page numbers as assigned by the Court’s electronic case filing

system.

After reviewing the parties’ filings, the Court appointed the Federal

Public Defender to represent Petitioner in order to file a supplemental brief

addressing Ground Four of the Petition, as well as any other ground counsel

deemed worthy of further discussion. See Order (Doc. 18). Petitioner, through

counsel, filed a Supplemental Brief (Doc. 26) addressing Ground Four, as did

Respondents (Doc. 27). This case is ripe for review.2

II. Governing Legal Principles

A. Standard Under AEDPA

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). “‘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)).

2 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

(11th Cir. 2016) (citing 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) (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 not necessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

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 Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale for the state court’s

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

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

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. 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, 138 S. Ct. 1188, 1192 (2018).

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 fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (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).

B. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. 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 exhaust state remedies, the petitioner 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 a claim, “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); 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.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘opportunity to pass upon and correct’ alleged

violations of its prisoners’ federal rights.” Duncan v.

Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting

Picard v. Connor, 404 U.S. 270, 275 (1971)). To provide

the State with the necessary “opportunity,” the

prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, 513 U.S. at 365-66; O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citations modified).

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. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman, 501 U.S. at 747-48;

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 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, 131 S. Ct. 1120,

1127-28 (2011); Beard v. Kindler, 130 S. Ct. 612, 617-

18 (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). Thus,

procedural defaults may be excused under certain circumstances.

Notwithstanding that a claim has been procedurally defaulted, a federal court

may still consider the claim if a state habeas petitioner can show either (1) cause

for and actual prejudice from the default; or (2) a fundamental miscarriage of

justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). For a petitioner to

establish cause and prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Murray

v. Carrier, 477 U.S. 478, 488 (1986). Under the

prejudice prong, [a petitioner] must show that “the

errors at trial actually and substantially disadvantaged

his defense so that he was denied fundamental

fairness.” Id. at 1261 (quoting Carrier, 477 U.S. at 494).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (internal citations

modified).

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

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

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[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 v. Alabama, 256

F.3d 1156, 1171 (11th Cir. 2001) (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 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 curiam)

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

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

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.

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). 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 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 697.3

Further, “[t]he 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

3 This two-part Strickland standard also governs a claim of ineffective assistance of

appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).

“Appellate counsel has no duty to raise every non-frivolous issue and may reasonably

weed out weaker (albeit meritorious) arguments. Generally, only when ignored issues

are clearly stronger than those presented, will the presumption of effective assistance

of counsel be overcome.” Id. (internal quotations and citations omitted). To satisfy the

prejudice prong, a petitioner must show a reasonable probability that “but for the

deficient performance, the outcome of the appeal would have been different.” Black v.

United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore v. McNeil, 575

F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the neglected claim

would have a reasonable probability of success on appeal”).

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 Corr., 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 of Corr., 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. Analysis

A. Ground One

Petitioner argues that his trial counsel was ineffective for failing to object

“to inadmissible hearsay testimony from Ms. Homernett[er] Hicks used to

identify the Petitioner as the shooter.” Doc. 1 at 16 (capitalization omitted).

Petitioner raised this claim in his postconviction motion filed pursuant to

Florida Rule of Criminal Procedure 3.850. The postconviction court, after

holding an evidentiary hearing, denied the claim:

Defendant contends counsel was ineffective for

allowing for the admission of inadmissible hearsay

testimony from one of the drive-by shooting victims,

Homernetter Hicks (“Ms. Hicks”). Specifically,

Defendant claims counsel should have objected to, or

filed a motion in limine regarding, Ms. Hicks’ by-name

identification of Defendant, because she learned of

Defendant’s name based on hearsay statements from

the other, non-testifying victim, Glen Deering (“Mr.

Deering”), after the shooting occurred.[FN]

[FN] Mr. Deering was unavailable to testify

at trial due to a debilitating motorcycle

accident that occurred after the shooting

but before trial.

At trial, Ms. Hicks identified Defendant as the

shooter by reciting his name, identifying him in court,

and describing the vehicle he was driving during the

incident:

The State: Who was the person who shot

at you?

Ms. Hicks: Henry Mills.

The State: Do you see him in the

courtroom today?

Ms. Hicks: Yes.

The State: Can you please identify him by

an article of clothing he’s wearing and his

position in the courtroom?

Ms. Hicks: A white t-shirt.

The State: Okay. And where is he seated?

Ms. Hicks: On the left-hand side.

The State: And is he on the right, the side,

or the left middle?

Ms. Hicks: In the middle.

The State: May the record reflect that

she’s identified the defendant?

This Court: The record will so reflect.

. . . .

The State: Okay. Can you describe the car

that, um, Mr. Mills was in?

Ms. Hicks: A burgundy Trail Blazer.

. . . .

The State: At some point, after driving

around the Wilson area, did you-all see

Mr. Mills?

Ms. Hicks: Yes, ma’am.

. . . .

The State: When you saw him, was he in

the same burgundy Trail Blazer that you

had seen him [in] earlier?

Ms. Hicks: Yes, ma’am.

Counsel did not object to Ms. Hicks identifying

Defendant by name, but cross-examined Ms. Hicks on

how she became aware of Defendant’s name:

Defense Counsel: Okay. Alright. So when

Ms. Sykes asked you who shot at you, and

you answered, Henry Mills; right?

Ms. Hicks: Correct.

Defense Counsel: Because somebody else

gave you that name?

Ms. Hicks: No.

Defense Counsel: This man [Defendant]

never gave it to you?

Ms. Hicks: [Defendant] never gave me

that name.

Defense Counsel: Okay. Someone else

gave you that name?

Ms. Hicks: Okay. Correct.

Based on this line of questioning during cross-

examination, it is clear counsel knew or suspected that

Ms. Hicks became aware of Defendant’s name through

someone else, presumably Mr. Deering. Because Mr.

Deering was unavailable, his out-of-court statement of

Defendant’s name to Ms. Hicks is inadmissible

hearsay. Counsel performed deficiently by not

objecting to, or filing a motion in limine to exclude, Ms.

Hicks’ by-name identification of Defendant.

Defendant, however, was not prejudiced by

virtue of counsel’s failure to object or file a motion in

limine. Although Ms. Hicks’ by-name identification of

Defendant was the product of hearsay and should have

been excluded from trial, Ms. Hicks also identified

Defendant as the shooter by identifying him in court

and by describing the car he was driving during the

shooting. Furthermore, Larry White (“Mr. White”), an

eye-witness who lived on the street where the shooting

occurred, identified Defendant as the perpetrator based

on his description of Defendant’s vehicle, an in-court

description of Defendant at the time of the shooting,

and an out-of-court show-up identification of Defendant

immediately following the shooting.[] Linda Sterling

(“Ms. Sterling”), another eyewitness who lived on the

street where the shooting occurred, accurately

described the vehicle Defendant was driving and the

driver of that vehicle as being a relatively young black

male with very short hair-just like Defendant. Given

the fact that these additional methods of identification

are equally if not more compelling proof of identity, this

Court finds there is no reasonable likelihood of

Defendant being acquitted had Ms. Hicks been

foreclosed from identifying Defendant by name at trial.

Later at trial, Defendant was referenced as being

the shooter by his name through the testimony of

Sergeant William Nelson (“Sgt. Nelson”) and

Lieutenant Michael Shell (“Lt. Shell”), both of whom

obtained Defendant’s name via the inadmissible

hearsay statements of Mr. Deering. Counsel objected to

both by-name identifications of Defendant; the trial

judge, however, denied these hearsay objections.

Therefore, counsel did not perform deficiently for

failing to object to the subsequent by-name hearsay

identifications of Defendant, because “counsel cannot

be ineffective for what counsel actually did . . . .” Bates

v. State, 3 So. 3d 1091, 1106 n.20 (Fla. 2009).

Accordingly, because Defendant was not prejudiced by

Ms. Hicks’ by-name identification of Defendant, and

because counsel did not perform deficiently with

respect to subsequent witnesses’ by-name

identification of Defendant, this claim is denied.

Resp. Ex. 13 at 3-6 (internal record citations and footnotes omitted). Petitioner

appealed, and the First District Court of Appeal per curiam affirmed the

postconviction court’s denial of this claim without issuing a written opinion.

Resp. Ex. 17.

This 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. Thus, Petitioner is not entitled to federal habeas

relief on Ground One.

B. Ground Two

Petitioner argues that his trial counsel was ineffective for failing “to

present evidence favorable to Petitioner’s defense (J.S.O. CAD Report (Police

dispatch) and Interrogation video).” Doc. 1 at 18 (capitalization omitted). He

argues that “[t]he jury was never aware of the initial description of the shooter

having dreadlocks . . . and the police dispatch and interrogation video would

have allowed the jury to hear and see that [Petitioner] did not match the

description of the shooter.” Id.

Petitioner raised this claim in his Rule 3.850 motion. After holding an

evidentiary hearing, the postconviction court denied the claim:

Defendant avers counsel was ineffective for

failing to introduce the Jacksonville Sheriff Office’s

dispatch recording and Defendant’s interrogation

video, which would have established that the physical

descriptions of the shooter given by three eye-

witnesses, Mr. Deering, Mr. White, and Ms. Sterling,

conflicted with one another and with Defendant’s

physical appearance at the time he was arrested.

The still shot photograph from Defendant’s

interrogation video shows Defendant had short hair

and was wearing a black t-shirt at the time of his

arrest. This is contrary to Mr. White’s testimony

regarding the shooter wearing a “wife-beater”-type

tank top. This is also contrary to the police dispatch

that indicated the shooter had “short twists” (i.e.,

dreadlocks), presumably based on information Mr.

Deering initially provided police regarding the

shooter’s identity.

Even if counsel had introduced the still shot

photograph from Defendant’s interrogation and the

police dispatch recording at trial, there is no

reasonable probability that the outcome of the trial

would have been different. At trial, the State

preemptively elicited testimony from Sgt. Nelson

indicating that Mr. Deering was not initially truthful

with police regarding the description and identity of

the shooter. During closing arguments, defense

counsel highlighted Mr. Deering’s initial

untruthfulness with Sgt. Nelson:

And Glen Deering lied to Sgt. Nelson. Sgt.

Nelson said when he was first speaking to

Glen Deering, Glen Deering gave him a

story, and Sgt. Nelson said, I didn’t believe

his story, kept pressing him, Deering

changed his story, and then he started

coming up, and that’s when he gives the

name, and then they do the BOLO.

Counsel could have introduced the dispatch recording

to show the jury the specific misinformation Mr.

Deering first gave police regarding the shooter’s “short

twists,” but this evidence would be highly unlikely to

persuade the jury to acquit Defendant, especially

considering the jury was already aware that Mr.

Deering was initially untruthful with police.

At trial, Mr. White testified the shooter was

wearing a “wife-beater”-type tank top; the still shot

photograph from Defendant’s interrogation, however,

shows Defendant was wearing a black t-shirt at the

time of arrest. Counsel did not introduce the still shot

photograph from Defendant’s interrogation into

evidence. Counsel did, however, highlight the

discrepancy in Mr. White’s testimony at closing: “This

person [Defendant] is sitting in a car [at the time of

the show-up identification], and is this person

[Defendant] wearing a wife beater? No. He’s wearing

a black shirt.” Therefore, counsel was not deficient.

Bates, 3 So. 3d at 1106 n.20 (“[C]ounsel cannot be

ineffective for what counsel actually did . . . .”).

Moreover, even if counsel had introduced the

still shot interrogation photograph at trial, there is no

reasonable probability that Defendant would have

been acquitted in light of the various other modes of

identification at trial. Specifically, Ms. Hicks

identified Defendant as the shooter by identifying him

in court and by describing the car he was driving

during the shooting. Ms. Sterling accurately described

the vehicle Defendant was driving and the driver of

that vehicle as being a relatively young black male

with very short hair. Mr. White identified Defendant

as the perpetrator based on his description of

Defendant’s vehicle and an out-of-court show-up

identification of Defendant immediately following the

shooting. Furthermore, two shell casings were found

in Defendant’s car when he was arrested minutes after

the shooting. In light of the glut of identification

evidence adduced at trial, and given the fact that

counsel did, in fact, highlight the discrepancy in Mr.

White’s testimony, there is no reasonable likelihood

the outcome of the trial would have been different if

counsel had introduced the still shot photograph of

Defendant’s interrogation. Accordingly, because

counsel did not perform deficiently, and because

Defendant was not prejudiced, this claim is denied.

Resp. Ex. 13 at 9-11 (internal record citations omitted). Petitioner appealed,

and the First DCA per curiam affirmed the state court’s denial of this claim

without issuing a written opinion. Resp. Ex. 17.

This 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. Thus, Petitioner is not entitled to federal habeas

relief on Ground Two.

C. Ground Three

Petitioner claims that his trial counsel was ineffective for failing “to file a

motion in limine to exclude identification / testimony of Glen Deering who was

unavailable for trial.” Doc. 1 at 20 (capitalization omitted). Petitioner raised

this claim in his Rule 3.850 motion. The postconviction court summarily denied

the claim:

Defendant avers counsel was ineffective for not

filing a motion in limine to exclude Mr. Deering’s

testimony regarding his identification of Defendant as

the shooter.

Counsel did not perform deficiently by not filing

a motion in limine to exclude Mr. Deering’s testimony

regarding his identification of Defendant because Mr.

Deering did not testify at trial. Furthermore, this

Court finds the issue of Mr. Deering’s out-of-court

identification of Defendant and the resultant,

allegedly-hearsay testimony of Ms. Hicks, Lt. Shell,

and Sgt. Nelson was fully analyzed in Ground One

above. Accordingly, this claim is denied for being

duplicative of Ground One.

Resp. Ex. 13 at 13 (internal record citations omitted). Petitioner appealed, and

the First DCA per curiam affirmed the state court’s denial of this claim without

issuing a written opinion. Resp. Ex. 17.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Even assuming

trial counsel was deficient in the manner Petitioner suggests, Petitioner fails to

show prejudice. Indeed, he has not shown a reasonable probability exists that

but for his counsel’s alleged ineffectiveness, the outcome of his trial would have

been different. Thus, 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.

Thus, Petitioner is not entitled to federal habeas relief on Ground Three.

D. Ground Four

Petitioner contends that he was denied “due process” and the “right to

confront one’s accuser when” the “trial court committed reversible error by

allowing (2) Jacksonville Sheriff’s Officers to testify to inadmissible hear-say

[sic] from unavailable declarant.” Doc. 1 at 22 (capitalization omitted).

Specifically, according to Petitioner, the law enforcement officers were

permitted to testify “that Glen Deering[,] a non-testifying alleged victim[,] had

identified [Petitioner] by name as the shooter.” Id.

Respondents contend that this claim is unexhausted because when

Petitioner raised it in state court, “Petitioner argued the case solely as a matter

of Florida law and not as a violation of the United States Constitution.” Doc. 5

at 31. In his counseled supplemental brief, Petitioner contends that “[h]e

consistently raised arguments that the testimony was inadmissible because Mr.

Deering was not a testifying witness,” and he “raised the confrontation issue in

his direct appeal” while citing to Postell v. State, 398 So. 2d 851, 854 (Fla. 3d

DCA 2981), which discussed the Sixth Amendment Confrontation Clause. Doc.

26 at 19. Petitioner further states that he also “cited to other cases that do not

directly cite to the Sixth Amendment, but rely on cases under the Sixth

Amendment.” Id. at 19 n.4. Petitioner also argues that he exhausted the federal

nature of this claim because he cited to federal law when he raised a similar

argument in the context of an ineffective assistance of trial counsel claim in his

Rule 3.850 motion. See id. at 19-20.

The Eleventh Circuit has found that when a petitioner has “a claim that

could arise under either state or federal law,” the petitioner “must clearly

indicate to the state courts that he intends to bring a federal claim.” Preston v.

Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 458 (11th Cir. 2015). To do so, “a

petitioner need not use magic words or talismanic phrases to present his federal

claim to the state courts.” Id. at 457. However, he must “put the state court on

notice that he intend[s] to raise a federal claim . . . by, for example,

‘including . . . the federal source of law on which he relies or a case deciding

such a claim on federal grounds, or by simply labeling the claim [as a federal

one].’” Id. (quoting Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1351 (11th Cir.

2012)). “[T]his language must be applied with common sense and in light of the

purpose underlying the exhaustion requirement[:] to afford the state courts a

meaningful opportunity to consider allegations of legal error without

interference from the federal judiciary.” McNair v. Campbell, 416 F.3d 1291,

1302 (11th Cir. 2005) (internal quotations and citations omitted).

In his direct appeal, Petitioner, through counsel, raised a claim entitled:

“The trial court committed reversible error in overruling defendant’s hearsay

and legal relevancy objections (and denying his related mistrial motions)

thereby allowing law enforcement officers to testify a non-testifying victim had

furnished them with evidence of [the defendant’s] guilt.” Resp. Ex. 6 at 32

(capitalization omitted).4 In making this argument, Petitioner did not cite or

identify any federal constitutional provisions in his initial or reply briefs (nor

did the state in its answer brief). Instead, the focus of Petitioner’s argument

was on the trial court’s evidentiary rulings. While Petitioner repeatedly stated

that the admission of the hearsay testimony was improper because it violated

his right to confront the witness against him, he cited only Florida case law in

support of his position. Only one of those cited cases–which Petitioner included

in a “see also” citation without any parenthetical explanation–addresses the

United States Constitution’s Sixth Amendment Confrontation Clause. See id.

at 37 (citing Postell v. State, 398 So. 2d 851, 854 (Fla. 3d DCA 1981)). That

single citation cannot be said to have placed the state court on notice of the

federal nature of Petitioner’s claim. To say that such a citation would exhaust

a federal claim would require a state court to review every case that is simply

cited in a brief to determine whether the cited case turned on federal law, even

when the brief does not cite or otherwise identify any federal law.

This case is similar to Lucas.

[I]n Lucas[,] . . . the petitioner failed to specify whether

his claim arose under state or federal law in his briefing

before the Florida Supreme Court. He averred only that

4 The First DCA issued an en banc opinion affirming Petitioner’s convictions and

sentences without comment but issued a written opinion addressing the trial court’s

imposition of a cost and fine. See Resp. Ex. 9.

he had been deprived “of his constitutional right of

confrontation of witnesses against him.” Lucas, 682

F.3d 1342, 1352 (11th Cir. 2012) (quotation omitted).

The difficulty was that both the federal and Florida

Constitutions grant a right to confront witnesses. Id.

The petitioner did not cite to any cases discussing the

confrontation right, nor did he refer to any specific

constitutional provisions. Id. at 1353. His allusion to a

“constitutional right of confrontation,” standing alone,

did not “fairly apprise[] the state court of his federal

constitutional right-to-confrontation claim.” Id. at

1352-53 (emphasis added). Our conclusion was guided

in substantial measure by the Supreme Court’s

decision in Baldwin v. Reese, where the petitioner

asserted an ineffective assistance of counsel claim. 541

U.S. at 27, 30 (2004). Much like the petitioner in Lucas,

the petitioner in Baldwin did not explain whether his

claim arose under the federal or Oregon Constitution.

Id. at 33. The Supreme Court, therefore, held that his

mere reference to “ineffective assistance” did not fairly

present a federal claim. Id. at 32. Together, Lucas and

Baldwin stand for the proposition that a petitioner with

a claim that could arise under either state or federal

law must clearly indicate to the state courts that he

intends to bring a federal claim.

Preston, 785 F.3d at 458 (internal citations modified). While some Eleventh

Circuit precedent exists that has a more lenient exhaustion standard in this

regard,5 those cases were decided prior to the Supreme Court’s decision in

5 See Watson v. Dugger, 945 F.2d 367, 371-72 (11th Cir. 1991) (“Defendants in state

courts need not couch all of their claims in constitutional terms to preserve a

constitutional issue for federal habeas corpus review. Instead, they need only present

the substance of a federal constitutional claim to the state courts in order to exhaust

the issue and preserve it for review in a federal habeas corpus proceeding. When a

federal habeas petitioner presents what amounts to a mere variation in the same claim

rather than a different legal theory, he has presented the state courts with the

substance of his claims and thus has properly exhausted them.” (internal quotations

and citations omitted)); Hutchins v. Wainwright, 715 F.2d 512, 518 (11th Cir. 1983)

Duncan v. Henry, 513 U.S. 364 (1995).6 In Duncan, the Supreme Court found

that “[i]f state courts are to be given the opportunity to correct alleged violations

of prisoners’ federal rights, they must surely be alerted to the fact that the

prisoners are asserting claims under the United States Constitution.” Duncan,

513 U.S. at 365-66. Similarity between the protections under state law and

federal law is not enough. Indeed, a petitioner is required to give the state

courts notice of a federal legal theory, even if the substance of the state and

federal claims are identical.

Considering the record, the Court finds that Petitioner did not “fairly

present” the federal nature of his claim to the state court. Lucas, 682 F.3d at

1352 (“[A] petitioner does not ‘fairly present’ a claim to the state court ‘if that

court must read beyond a petition or a brief (or a similar document) that does

not alert it to the presence of a federal claim in order to find material, such as

a lower court opinion in the case, that does so.’” (quoting Baldwin, 541 U.S. at

32)); see also Raulerson v. Warden, 928 F.3d 987, 1005 (11th Cir. 2019) (“In the

context of exhaustion, ‘it is not at all clear that a petitioner can exhaust a federal

(“Although the phrasing of the issue on direct appeal did not use the words

‘confrontation clause,’ the appeal clearly presented the problem of allowing and urging

the jury to infer that an unnamed non-testifying witness had identified the

petitioner.”).

6 The Eleventh Circuit recently recognized that Duncan “undermined to the point of

abrogation [the] decision in Watson and explains [the Eleventh Circuit’s] subsequent

departure from the Watson decision.” Pringle v. Sec’y, Fla. Dep’t of Corr., No. 21-

14318, 2024 WL 3936915, at *7 (11th Cir. Aug. 26, 2024).

claim by raising an analogous state claim,’ even if the federal and state rights

are identical in content.” (quoting Preston, 785 F.3d at 460)). Thus, this claim

is unexhausted and procedurally barred. Petitioner has shown neither cause

nor prejudice resulting from the procedural bar, and he fails to demonstrate a

fundamental miscarriage of justice would result if this claim were not addressed

on the merits. Ground Four is due to be denied.

Even assuming the claim is exhausted and the trial court erred, there was

ample evidence outside of this alleged improper testimony to support

Petitioner’s convictions, such that any purported Sixth Amendment

Confrontation Clause error did not have a “‘substantial and injurious effect or

influence in determining the jury’s verdict.’” Granda v. United States, 990 F.3d

1272, 1292 (11th Cir. 2021) (quoting Davis v. Ayala, 576 U.S. 257, 267-68 (2015)

(describing the Brecht v. Abrahamson, 507 U.S. 619 (1993), standard)). Ms.

Hicks described the vehicle Petitioner was driving when the shooting occurred

and identified Petitioner in court; Mr. White described the shooter and the

shooter’s vehicle, and Mr. White identified Petitioner shortly after the shooting

in a show-up identification;7 and Ms. Sterling described Petitioner’s vehicle and

7 At trial, Mr. White testified that he immediately described the shooter and his vehicle

to the police while still at the scene. Resp. Ex. 3 at 76. Subsequently, the police took

Mr. White to a pawn shop, and as soon as they arrived, Mr. White identified the

shooter in the parking lot. See id. at 76-78. Sergeant Nelson, the officer who conducted

the show-up identification with Mr. White testified that Petitioner was standing next

to a detective who was also in street clothes, and Mr. White made the identification at

that time, stating, “‘I’m positive that’s him.’” Id. at 100. Additionally, prior to trial,

provided a description of the shooter. Further, when Petitioner was arrested

shortly after the shooting, two shell casings were found in his vehicle.

Considering the record, the Court finds Petitioner did not suffer “actual

prejudice.” Brecht, 507 U.S. at 637; see Al-Amin v. Warden, Ga. Dep’t of Corr.,

932 F.3d 1291, 1302 (11th Cir. 2019) (“On federal collateral review, however,

we review an alleged Confrontation Clause error under Brecht’s actual

prejudice standard.”). As such, Petitioner is not entitled to federal habeas relief

on this ground.8

E. Ground Five

According to Petitioner, the “appe[llate] court erred in affirming the trial

court[’]s denial of [P]etitioner’s J.O.A. Motion on direct appeal, because the

evidence was insufficient to sustain convictions for (3) counts of attempted

defense counsel filed a motion to suppress Mr. White’s positive identification of

Petitioner during the show-up identification. See Resp. Ex. 13 at 52-54. Thus, while

Mr. White did not specifically indicate during his trial testimony that Petitioner was

the same person he identified that day, it was clear based on the totality of the

testimony and other record evidence that White positively identified Petitioner shortly

after the crime.

8 Insofar as Petitioner argues that the trial court erred in its evidentiary rulings,

“federal courts will not generally review state trial courts’ evidentiary

determinations.” Taylor v. Sec’y, Fla. Dep’t of Corr., 760 F.3d 1284, 1295 (11th Cir.

2014). “[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a federal court is

limited to deciding whether a conviction violated the Constitution, laws, or treaties of

the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “Habeas relief is

warranted only when the error ‘so infused the trial with unfairness as to deny due

process of law.’” Taylor, 760 F.3d at 1295 (quoting Lisenba v. People of State of

California, 314 U.S. 219, 228 (1941)). Here, the alleged errors did not affect the

fundamental fairness of Petitioner’s trial.

second-degree murder.” Doc. 1 at 24. He argues that “the [S]tate[’]s evidence

did not exclude the reasonable hypothesis that the reported shots were in the

nature of warning shots that did nothing to put the occupants in imminent

danger of being wounded or killed.” Id. at 25. He further argues that “there was

no evidence showing any type of ongoing hatred or enmity between [Petitioner]

and any of the alleged victims,” and “at most, the [S]tate[’]s evidence

demonstrated that [Petitioner] impulsively overreacted by discharging the gun

to break off the car chase being perpetrated by Deering and Hicks.” Id. at 26.

Petitioner raised a similar claim on direct appeal. See Resp. Ex. 6 at 17-

25. The First DCA issued an en banc opinion affirming Petitioner’s convictions

and sentences without comment but issued a written opinion addressing the

trial court’s imposition of a cost and fine. See Resp. Ex. 9. Petitioner filed a

counseled motion for rehearing and a request for the issuance of a written

opinion on the two claims summarily affirmed and a certification, which the

First DCA denied. See Resp. Ex. 10.

Respondents argue that this claim is unexhausted. See Doc. 5 at 35. In

addressing this claim on direct appeal, Petitioner cited to the Due Process

Clause of the Fourteenth Amendment and a United States Supreme Court case.

See Resp. Ex. 6 at 25. The focus of his argument, however, was again founded

upon state law. Nevertheless, assuming the claim is exhausted and the First

DCA addressed the federal nature of the claim on the merits, the Court will

address 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.

Regardless, the claim has no merit. When reviewing an insufficiency of

the evidence claim in a habeas petition, a federal court must determine

“whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). The court must assume that the jury resolved any evidentiary conflicts

in favor of the prosecution, and the court must defer to that resolution. Id. Here,

after a thorough review of the trial record, it is clear that the state presented

sufficient evidence of the charged offenses such that a “rational trier of fact”

could find “the essential elements of [each] crime beyond a reasonable doubt.”

Hallford v. Culliver, 459 F.3d 1193, 1205-06 (11th Cir. 2006) (quotations and

citation omitted). Indeed, testimony at trial showed that shots were fired at the

vehicle occupied by Deering, Hicks, and their daughter. Resp. Ex. 3 at 35-36,

73-74. Ms. Hicks testified that she feared for her life, and she was afraid, noting

she had her baby in the car with her. See id. at 35. The jury was instructed that

to prove the crime of attempted second-degree murder, the state must prove

beyond a reasonable doubt that: (1) Petitioner intentionally committed an act

which would have resulted in the death of the three victims except that someone

prevented Petitioner from killing them or he failed to do so; and (2) the act was

imminently dangerous to another and demonstrating a depraved mind without

regard for human life. Resp. Ex. 4 at 188-89. The evidence presented at trial

supported the jury’s finding that the state proved these two elements beyond a

reasonable doubt as to Deering, Hicks, and the child. Thus, the trial court did

not error in denying Petitioner’s motion for a judgment of acquittal, and his

sufficiency of the evidence claim is without merit. Accordingly, Ground Five is

due to be denied.

F. Ground Six

Petitioner argues that his appellate counsel was ineffective for failing “to

raise on direct appeal that fundamental error occurred when Petitioner’s jury

was not instructed on the one step removed necessary lesser included jury

instruction of attempted manslaughter by act.” Doc. 1 at 27 (capitalization

omitted). Petitioner raised this claim in his state court habeas petition alleging

ineffective assistance of appellate counsel. Resp. Ex. 18 at 3-7. The First DCA

denied the petition on the merits. See id. at 47.

Respondents recognize that “[a]t the time of trial, March 26, 2014, and

during the pendency of the direct appeal the failure to give a jury instruction

on attempted manslaughter by act as a category one lesser included offense of

attempted second-degree murder was fundamental error.” Doc. 5 at 38 (citing

State v. Montgomery, 39 So. 3d 252 (Fla. 2010)). However, in 2019, “the Florida

Supreme Court receded from Montgomery and its progeny and held that Florida

would no longer ‘recognize . . . a fundamental right to instructions that facilitate

partial jury nullification.’” Id. at 39 (quoting Knight v. State, 286 So. 3d 147,

151 (Fla. 2019)). Thus, Respondents assert that “if this Court were to grant

relief and order a new appeal – which would be the logical remedy for a claim

of ineffective [assistance of] appellate counsel – the result would be the same,

as there was no fundamental error.” Id. Respondents also note that because

Petitioner’s trial counsel “relied on aggravated assault as the only lesser

included offense[,] . . . [t]he only argument available would be fundamental

error.” Id.

At the time of Petitioner’s direct appeal, failing to instruct a jury on

attempted manslaughter as a lesser included offense of attempted second-

degree murder constituted fundamental error. See Walton v. State, 208 So. 3d

60 (Fla. 2016). But, in 2019, the Florida Supreme Court receded from that

precedent. See Knight, 286 So. 3d at 147. “The new rule of [Florida] law . . . is

that there is no fundamental error in jury instructions where ‘there was no error

in the jury instruction for the offense of conviction and there is no claim that

the evidence at trial was insufficient to support that conviction.’” Roberts v.

State, 299 So. 3d 9, 12 (Fla. 4th DCA 2020) (quoting Knight, 286 So. 3d at 151).

Had Petitioner’s appellate counsel raised this issue on direct appeal in

2014, the First DCA would have found fundamental error. Thus, appellate

counsel performed deficiently by not raising that issue on direct appeal.9

However, Petitioner cannot show prejudice.

In making the determination whether the specified

errors resulted in the required prejudice, a court should

presume, absent challenge to the judgment on grounds

of evidentiary insufficiency, that the judge or jury acted

according to law. An assessment of the likelihood of a

result more favorable to the defendant must exclude

the possibility of arbitrariness, whimsy, caprice,

“nullification,” and the like. A defendant has no

entitlement to the luck of a lawless decisionmaker,

even if a lawless decision cannot be reviewed. The

assessment of prejudice should proceed on the

assumption that the decisionmaker is reasonably,

conscientiously, and impartially applying the

standards that govern the decision. It should not

depend on the idiosyncra[s]ies of the particular

decisionmaker, such as unusual propensities toward

harshness or leniency.

9 Notably, in his Rule 3.850 motion, Petitioner argued that trial counsel was ineffective

“for failing to object to jury instructions that only included Aggravated Assault (a

permissible, category-two lesser-included offense), and not Attempted Manslaughter

by Act (a mandatory, category-one lesser-included offense).” Resp. Ex. 13 at 223. The

postconviction court found that trial counsel was deficient for not requesting such an

instruction, but further found that Petitioner did not suffer prejudice: “‘[A]s a matter

of law, the possibility of a jury pardon cannot form the basis for a finding of prejudice

under Strickland. Therefore, a claim alleging ineffective assistance of counsel for

failure to request an instruction on a lesser-included offense may be summarily

denied.’” Id. at 224 (quoting Sanders v. State, 946 So. 2d 953, 960 (Fla. 2006)).

Strickland, 466 U.S. at 694-95; see also Sanders, 946 So. 2d at 958-60

(recognizing that a failure to instruct a jury on a lesser-included offense cannot

support a prejudice finding under Strickland).

The record reveals that the jury instructions on attempted second-degree

murder were proper and there was sufficient evidence to support the attempted

second-degree murder convictions. Indeed, the jury’s verdict reflects their belief

that the state proved beyond a reasonable doubt that Petitioner was guilty of

attempted second-degree murder. This Court presumes that the jury acted in

accordance with the law. See Strickland, 466 U.S. at 694. Thus, the jury,

following the trial court’s instructions, would not have convicted Petitioner of

attempted manslaughter, a lesser-included offense, even if the manslaughter

instruction had been given. See Sanders, 946 So. 2d at 958 (recognizing that in

Florida, a jury may convict a defendant of a lesser-included offense “only if it

decides that the main accusation has not been proved beyond a reasonable

doubt”).

Therefore, considering the record, the Court finds that the state court’s

decision denying Petitioner’s petition alleging ineffective assistance of appellate

counsel 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.

Petitioner is not entitled to federal habeas relief on Ground Six.

Accordingly, it is

ORDERED:

1. Petitioner’s Motion to Proceed Pro Se and Get Ruling on Motion to

Hear and Rule (Doc. 30) is GRANTED to the extent that the Federal Public

Defender is relieved of any further responsibility in this case, and Petitioner is

now proceeding pro se. The Court appreciates the services of appointed counsel.

2. The Petition (Doc. 1) is DENIED, and this case is DISMISSED

WITH PREJUDICE.

3. The Clerk of Court shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

4, If Petitioner appeals, 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.!°

DONE AND ORDERED at Jacksonville, Florida, this 94 day of

September, 2024.

TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 9/6

C:

Henry Coldridge Mills, #D10394

Counsel of Record

10 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, 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)). Here, after consideration

of the record as a whole, the Court will deny a certificate of appealability.

34