Trammell v. Secretary, Department of Corrections (Hernando)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

NICHOLAS JAMES TRAMMELL,

Applicant,

v. CASE NO. 8:18-cv-2141-TPB-TGW

SECRETARY, Department of Corrections,

Respondent.

/

ORDER DENYING PETITION

FOR THE WRIT OF HABEAS CORPUS

This action proceeds under Trammell’s amended petition under 28 U.S.C.

§ 2254 for the writ of habeas corpus (Doc. 16), in which he challenges his

convictions for murder in the second degree (Count One), armed burglary of a

dwelling with battery (Count Two), and home-invasion robbery with a firearm

(Count Three), for which convictions Trammell is imprisoned for life, with a

twenty-five-year minimum mandatory on each count. Numerous exhibits

(“Respondent’s Exhibit __”) support the response. (Doc. 20) The Respondent

admits the application’s timeliness (Response at 11, Doc. 20) but argues that a

ground is not fully exhausted.1

1 Shortly after Trammell filed this action in 2018 an earlier order (Doc. 4) dismissed the petition

as time-barred, however, in 2021 (1) that order was vacated because Trammell had been granted a

belated appeal in state court, (2) this case was re-opened, and (3) the respondent was directed to

respond to the petition.

BACKGROUND

Trammell admits to the following facts in his supporting memorandum

(Doc. 17 at 2–3):

On August 16th, 2011, Petitioner, along with co-defendants Willoughby

and Harris in the evening hours went to [the victim’s home in] Hernando

County, Florida. Codefendant Harris was armed with an AK-47 and

Petitioner was armed with a .12 gauge shotgun. Co-defendant Willoughby

was armed with a handgun. The three defendants went to the home of

the victim Michael Pfeifer believing that there would be U.S. Currency

and/or controlled substances there. After the three defendants entered

the home through the rear door brandishing their firearms, they came

into contact with Mr. Pfeifer and also another occupant of the home, Mr.

Cliff Kearney. Mr Pfeifer and Mr. Kearney were put down on the floor at

gunpoint. Both Mr. Pfeifer and Mr. Kearney were in fear of great bodily

harm as a result of the defendants’ actions.

Defendant Willoughby and Defendant Trammell went into the other

rooms and proceeded to ransack those rooms. During the course of the

incident, with the two victims on the floor in the bedroom, there came a

point in time when Mr. Kearney was struck by one of the firearms about

the head.

Mr. Pfleifer started to get up from the ground and engaged in a physical

altercation with Defendant Harris. During the course of that incident a

struggle occurred with the two victims on the floor in the bedroom.

During the course of that incident, Trammell was alleged to have fired

two shotgun rounds striking Mr. Pfeifer in the thigh areas and during

that course, Mr. Harris discharged his [AK-47] and Mr. Pfeifer was also

struck with at least one round from that weapon. After the firearms were

discharged the Defendants obtained some property from the residence

and fled on foot. Mr. Kearney, who was at the scene, who had been struck

in the head, eventually called 9-1-1 and members of the Hernando

County Sheriff ’s Office and fire rescue responded to the scene. Mr.

Pfeifer died at the scene because of the blood loss that he sustained as a

result of the shots being fired.

Further, Trammell admits (Doc. 17 at 3–4) to the following:

(1) that a “Band-Aid” found at the scene tested positive for the DNA of

co-defendant Harris;

(2) that co-defendant Harris was arrested and confessed to his

involvement;

(3) that co-defendant Willoughby was arrested and confessed to both his

involvement and the involvement of the co-defendants;

(4) that Trammell retained the stolen property and buried both the

property and the guns with the assistance of a friend;

(5) that Trammell was arrested and denied any knowledge or involvement

in the incident;

(6) that while detained in the jail Trammell had a recorded telephone call

with the friend and asked whether the property was still buried; and

(7) that the friend contacted the police and led them to where the stolen

property and the guns were buried.

As stated above, Trammell was charged with murder in the first degree

with a firearm, armed burglary of an occupied dwelling with battery, and home

invasion robbery with a firearm during which Trammell possessed and

discharged the firearm causing injury. In exchange for a life sentence,

Trammell pleaded guilty to Counts Two and Three as charged and to the lesser

offense of murder in the second degree as included in Count One.

Trammell filed a belated appeal, a motion to mitigate sentence under

Rule 3.800(c), Florida Rules of Criminal Procedure, and a motion under

Rule 3.850 for post-conviction relief. Each was unsuccessful. The Respondent

admits (Doc. 20 at 11) that Trammell’s federal petition is timely.

STANDARD OF REVIEW

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

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

(11th Cir. 1998). Section 2254(d), which creates a highly deferential standard

for federal court review of a state court adjudication, states in pertinent part:

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

pursuant to the judgment of a State court shall not be granted with

respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim —

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential

standard:

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

habeas court to grant a state prisoner’s application for a writ of habeas

corpus with respect to claims adjudicated on the merits in state court.

Under § 2254(d)(1), the writ may issue only if one of the following two

conditions is satisfied — the state court adjudication resulted in a

decision that (1) “was contrary to . . . clearly established Federal Law, as

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

an unreasonable application of . . . clearly established Federal law, as

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

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

court arrives at a conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case differently than this

Court has on a set of materially indistinguishable facts. Under the

“unreasonable application” clause, a federal habeas court may grant the

writ if the state court identifies the correct governing legal principle from

this Court’s decisions but unreasonably applies that principle to the facts

of the prisoner’s case.

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

established federal law is objectively unreasonable, and . . . an unreasonable

application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693

(2002). “As a condition for obtaining habeas corpus from a federal court, a state

prisoner must show that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see

White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical point is that relief is

available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it

is so obvious that a clearly established rule applies to a given set of facts that

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

Richter); Woods v. Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable

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

wrong; even clear error will not suffice.”) (citing Woodall, 572 U.S. at 419);

accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective

reasonableness, not the correctness per se, of the state court decision that we

are to decide.”). The phrase “clearly established Federal law” encompasses only

the holdings of the United States Supreme Court “as of the time of the relevant

state-court decision.” Williams, 529 U.S. at 412.

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

[AEDPA] modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that

state-court convictions are given effect to the extent possible under law.” Bell,

535 U.S. at 694. A federal court must afford due deference to a state court’s

decision. “AEDPA prevents defendants — and federal courts — from using

federal habeas corpus review as a vehicle to second-guess the reasonable

decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779 (2010); see also

Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult to meet,’ . . .

and ‘highly deferential standard for evaluating state-court rulings, which

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

(citations omitted).

When the last state court to decide a federal claim issues a reasoned

and explanatory opinion, a federal habeas court reviews the specific reasons as

stated in the opinion and defers to those reasons if they are reasonable. Wilson

v. Sellers, 584 U.S. 122, 125 (2018) (“[A] federal habeas court simply reviews the

specific reasons given by the state court and defers to those reasons if they are

reasonable.”). When the relevant state-court decision is not accompanied with

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

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

relevant rationale [and] presume that the unexplained decision adopted the

same reasoning.” Id. The State may contest “the presumption by showing that

the unexplained affirmance relied or most likely did rely on different grounds

than the lower state court’s decision . . . .” Id.

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

court on direct appeal affirmed Trammell’s convictions and sentence.

(Respondent’s Exhibit O) Similarly, in another per curiam decision without a

written opinion, the state appellate court affirmed the denial of Trammell’s

subsequent Rule 3.850 motion to vacate. (Respondent’s Exhibit X) The state

appellate court’s per curiam affirmances warrant deference under Section

2254(d)(1) because “the summary nature of a state court’s decision does not

lessen the deference that it is due.” Wright v. Sec., Dep’t of Corr., 278 F.3d

1245, 1254 (11th Cir. 2002); see also Richter, 562 U.S. at 99 (“When a federal

claim has been presented to a state court and the state court has denied relief,

it may be presumed that the state court adjudicated the claim on the merits in

the absence of any indication or state-law procedural principles to the

contrary.”); Bishop v. Warden, GDCP, 726 F. 3d 1243, 1255–56 (11th Cir. 2013)

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

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

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

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

decision is limited to the state court record:

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

was before the state court that adjudicated the claim on the merits.

Section 2254(d)(1) refers, in the past tense, to a state-court adjudication

that “resulted in” a decision that was contrary to, or “involved” an

unreasonable application of, established law. This backward-looking

language requires an examination of the state-court decision at the time

it was made. It follows that the record under review is limited to the

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

court.

Trammell bears the burden of overcoming by clear and convincing evidence a

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

by a State court shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and convincing

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

finding of fact but not to a mixed determination of law and fact. Parker v. Head,

244 F.3d 831, 836 (11th Cir. 2001). The state post-conviction court’s rejection of

Trammell’s claims warrants deference in this case. (Order Denying Motion for

Post-Conviction Relief, Respondent’s Exhibit U) Trammell’s federal application

presents the same two grounds of ineffective assistance of counsel that were

presented to the state courts and an additional claim of ineffective assistance of

counsel that Trammell contends is entitled to review under Martinez v. Ryan,

566 U.S. 1 (2012).

INEFFECTIVE ASSISTANCE OF COUNSEL

Trammell asserts three claims of ineffective assistance of counsel, a

difficult claim to sustain. “[T]he cases in which habeas petitioners can properly

prevail on the ground of ineffective assistance of counsel are few and far

between.” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc)

(quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Sims v. Singletary,

155 F.3d 1297, 1305 (11th Cir. 1998), explains that Strickland v. Washington,

466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is well settled

and well documented. In Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court set forth a two-part

test for analyzing ineffective assistance of counsel claims. According to

Strickland,

First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

A petitioner must prove both deficient performance and consequent prejudice.

See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an

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

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

(“When applying Strickland, we are free to dispose of ineffectiveness claims on

either of its two grounds.”). “[C]ounsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Strickland, 466 U.S. at 690. “[A] court

deciding an actual ineffectiveness claim must judge the reasonableness of

counsel’s challenged conduct on the facts of the particular case, viewed as of the

time of counsel’s conduct.” Id. Strickland requires that “in light of all the

circumstances, the identified acts or omissions were outside the wide range of

professionally competent assistance.” Id.

Trammell must demonstrate that counsel’s alleged error prejudiced the

defense because “[a]n error by counsel, even if professionally unreasonable, does

not warrant setting aside the judgment of a criminal proceeding if the error had

no effect on the judgment.” Id. at 691. To meet this burden, Trammell must

show “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Id. at 694.

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

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

clearly established Federal law, as determined by the Supreme Court of the

United States; or (2) . . . based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” Sustaining a

claim of ineffective assistance of counsel is very difficult because “[t]he

standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and

when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105;

see also Dunn v. Reeves, 594 U.S. 731, 739 (2021) (“This analysis is ‘doubly

deferential’ when, as here, a state court has decided that counsel performed

adequately.”); Pinholster, 563 U.S. at 202 (An applicant must overcome this

“‘doubly deferential’ standard of Strickland and the AEDPA.”); Nance v.

Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (“Given the

double deference due, it is a ‘rare case in which an ineffective assistance of

counsel claim that was denied on the merits in state court is found to merit

relief in a federal habeas proceeding.’”) (quoting Johnson v. Sec’y, Dep’t of Corr.,

643 F.3d 907, 911 (11th Cir. 2011)); and Pooler v. Sec’y, Dep’t of Corr., 702 F.3d

1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel

claim — which is governed by the deferential Strickland test — through the

lens of AEDPA deference, the resulting standard of review is ‘doubly

deferential.’”).

In summarily denying Trammell’s motion for post-conviction relief, the

state court recognized that Strickland governs a claim of ineffective assistance

of counsel. (Respondent’s Exhibit U at 2) Because the state court rejected the

claims based on Strickland, Trammell cannot meet the “contrary to” test in

Section 2254(d)(1). Trammell instead must show that the state court

unreasonably applied Strickland or unreasonably determined the facts. In

determining “reasonableness,” the statute limits federal review to determining

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

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

actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th Cir.

2001). This presumption of correctness and the highly deferential standard of

review requires that the analysis of each claim begin with the state court’s

analysis.

Ground One:

Trammell alleges that trial counsel rendered ineffective assistance by

misadvising him that his possible sentence had a forty-year cap with a

minimum of twenty-five years’ imprisonment, whereas he was sentenced to life

imprisonment. The Respondent admits that this ground is exhausted. (Doc. 20

at 13) The post-conviction court denied this ground as follows (Respondent’s

Exhibit U at 3–4) (references to trial transcripts omitted) (brackets original):

In ground one the Defendant argues that trial counsel was ineffective for

misadvising the Defendant [that] there was a forty (40) year cap with a

twenty-five (25) mandatory minimum. The Defendant alleges that trial

counsel advised the Defendant that based on discussions with Judge

Tatti, who was presiding over the case at the time, the Defendant would

not receive more than forty (40) years since the co-defendant received a

forty (40) year cap. The Defendant argues that had he known he would

receive more than forty (40) years, he would not have entered the plea,

but instead taken the case to trial.

“Misrepresentations by counsel as to the length of a sentence or eligibility

for gain time can be the basis for postconviction relief in the form of leave

to withdraw a guilty plea.” State v. Leroux, 689 So. 2d 235, 236 (Fla.

1996) (citing Thompson v. State, 351 So. 2d 701 (Fla. 1977), cert. denied,

435 U.S. 998, 98 S. Ct. 1653, 56 L. Ed. 2d 88 (1978)). However, if the

record “conclusively” refutes the claim, a summary denial is appropriate.

Id. The Defendant argues that he entered the plea only because he was

told by trial counsel that Judge Tatti agreed to a forty ( 40) year cap.

However, during the change of plea hearing, trial counsel stated on the

record that “[t]here are no promises in regards to the sentence the Court

would impose. We discussed that both with the Court and the State. Mr.

Trammell is aware that there is a 25-year minimum mandatory that

must be applied. And we agree in regards to that[.]” Trial counsel advised

the Court that the Defendant was agreeing to enter the guilty plea in

exchange for the lesser included offense of murder in the second degree as

to Count I. Furthermore, the Defendant affirmed during the plea colloquy

that he understood the plea agreement was for him to enter a guilty plea

to the lesser included charge and was not promised anything other than

what was described in the agreement. The Defendant also signed a

Waiver of Rights and Plea Agreement that indicated the Defendant was

facing up to life in prison with the lesser included charge he agreed to

plead to, and the Defendant acknowledged he read and signed the

agreement. Accordingly, the Court finds that the Defendant was fully

aware he was facing up to life in prison and decided to proceed forward

with his negotiated plea in exchange for the lesser included charge of

murder in the second degree. Therefore, the Defendant has failed show

any prejudice under Strickland, and this claim is denied.

The record supports the post-conviction court’s finding that Trammell was

“fully aware he was facing up to life in prison” as the possible maximum

sentence. The “Waiver of Rights and Plea Agreement” (Respondent’s Exhibit B)

specifically lists “Life” on page one as the possible term of imprisonment for

each of the three counts, and, by initialing the eighth paragraph on page two,

Trammell admitted that he understood that he will not be “given any leniency,

other than the terms set forth in” the agreement. The post-conviction court did

not address whether trial counsel performed deficiently but denied the claim

based on Trammell’s failure to show prejudice; addressing both components was

unnecessary. Strickland, 466 U.S. at 697 (Because a petitioner must show both

deficient performance and prejudice, “[t]here is no reason for a court deciding an

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

defendant makes an insufficient showing on one.”). The state court’s decision is

supported by the record and is a reasonable application of Strickland.

Consequently, Trammell is not entitled to relief under Ground One.

Ground Two:

Trammell alleges that trial counsel rendered ineffective assistance by not

investigating and informing him about possible impeachment evidence before

he pleaded guilty, specifically, that a witness would testify that Willoughby was

the co-defendant who shot the deceased. The Respondent admits that this

ground is exhausted. (Doc. 20 at 13) The post-conviction court denied this

claim as follows (Respondent’s Exhibit U at 3–4) (references to trial transcripts

omitted):

In ground two, the Defendant alleges that trial counsel was ineffective

for failing to advise the Defendant of a viable defense. Where defendant

claims ineffective assistance on the ground that counsel failed to advise

of a viable defense, Strickland’s prejudice prong is established by

demonstrating a reasonable probability that, but for counsel’s errors, the

defendant would not have pleaded guilty and would have insisted on

going to trial. Grosvenor v. State, 874 So. 2d 1176 (Fla. 2004) (involving

failure to advise client of voluntary intoxication defense). In determining

whether a reasonable probability exists that the defendant would have

insisted on going to trial, a court should consider the totality of the

circumstances surrounding the plea, including such factors as whether a

particular defense was likely to succeed at trial, the colloquy between the

defendant and the trial court at the time of the plea, and the difference

between the sentence imposed under the plea and the maximum possible

sentence the defendant faced at trial. Id.

The Defendant argues that trial counsel was ineffective for failing to

advise the Defendant of a viable defense when there was no physical

evidence to link the Defendant to the crime, co-defendant Robert

Willoughby made inconsistent statements regarding the Defendant’s

involvement, and a witness identified Mr. Willoughby as the man that

admitted to shooting the victim in the leg. However, based on the totality

of the circumstances, the Court finds the Defendant has not shown a

reasonable probability that he would have abandoned his negotiated plea

and taken his chances at trial. During the sentencing hearing, trial

counsel agrees that based on Mr. Willoughby’s proffer, the forensics, and

the facts, Mr. Willoughby’s proffer was pretty accurate in how the events

took place. Mr. Willoughby stated that while the Defendant, Mr. Harris,

and Mr. Willoughby were inside the victim’s residence, Mr. Willoughby

heard a thump and then two gunshots. Mr. Willoughby stated the three

men ran back to their vehicle, and while inside the vehicle leaving the

incident, the Defendant stated he fired the gun trying to grab it from

[co-defendant] Harris. Once the men returned to Mr. Harris’ house, Mr.

Willoughby stated the Defendant again admitted he fired the gun.

Accordingly, based on the totality of the circumstances, the Court does

not believe that the Defendant would likely have turned down the

negotiated lesser included charge to proceed to trial. Therefore, the

Defendant has failed to establish any prejudice under Strickland, and

this claim is denied.

The record supports the post-conviction court’s finding that Trammell

failed to show that he would not have pleaded guilty but insisted on going to

trial, a showing required under Hill v. Lockhart, 474 U.S. 52, 59 (1985) (To prove

prejudice, “the defendant must show that there is a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.”). The admitted factual basis was that Trammell

possessed the 12-gauge shotgun, that he shot two rounds into the deceased’s

leg, and that the deceased died at the scene due to the loss of blood. Trammell’s

admission of the truth of the facts and his admission of guilt “constitute a

formidable barrier in any subsequent collateral proceedings. Solemn

declarations in open court carry a strong presumption of verity.” Blackledge v.

Allison, 431 U.S. 63, 73–74 (1977); accord Saldo v. Crosby, 162 F. App’x 915,

917 (11th Cir. 2006)2 (applying Allison). Whether trial counsel could have so

thoroughly impeached co-defendant Willoughby that a jury would have found

Trammell not guilty is simply too speculative, especially given the post-

conviction court’s review based on the totality of the circumstances. Trammel

fails to meet his burden to show that the state court’s decision was an

unreasonable application of Strickland. Consequently, Trammell is not entitled

to relief under Ground Two.

Ground Three:

Trammell alleges that both the trial court and trial counsel failed to

advise him that the maximum possible sentence was life imprisonment for the

charge of murder in the second degree. The Respondent correctly argues that

the trial court error aspect of this ground is unexhausted (Doc. 20 at 13), but

the ineffective assistance of counsel aspect is either unexhausted or, as

Trammell argues, potentially entitled to review under Martinez. This Order

analyzes the two claims as sub-claims A and B.

Sub-Claim A: Trial Court Error:

A petitioner must present each claim to a state court before presenting

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

2 “Unpublished opinions are not considered binding precedent, but they may be cited as

persuasive authority.” 11th Cir. Rule 36-2.

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

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

prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995); accord

Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (“A rigorously enforced total

exhaustion rule will encourage state prisoners to seek full relief first from the

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

of constitutional error.”).

Trammell should have, but did not, present his claim of trial court error

on direct appeal –– and only after preserving the claim by asserting it in the

trial court. The failure to alert the state appellate court that the trial court

allegedly violated a federally protected right fails to meet the exhaustion

requirement. As Baldwin v. Reese, 541 U.S. 27, 32 (2004), explains, an

applicant must alert the state court that he is raising a federal claim and not

just a state law claim.

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

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

citing in conjunction with the claim the federal source of law on which he

relies or a case deciding such a claim on federal grounds, or by simply

labeling the claim “federal.”

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

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

law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982); see also Kelley

v. Sec’y for Dep’t of Corr., 377 F.3d 1217, 1345 (11th Cir. 2004) (“The exhaustion

doctrine requires a habeas applicant to do more than scatter some makeshift

needles in the haystack of the state court record.”) (citations omitted); Upshaw

v. Singletary, 70 F.3d 576, 578 (11th Cir. 1995) (“[T]he applicant must have

fairly apprised the highest court of his state with the appropriate jurisdiction of

the federal rights which allegedly were violated.”). An applicant must present

to the federal court the same claim that was presented to the state courts.

Picard v. Connor, 404 U.S. 270, 275 (1971) (“[W]e have required a state prisoner

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

courts.”). “[M]ere similarity of claims is insufficient to exhaust.” Duncan,

513 U.S. at 366.

The failure to properly exhaust each available state court remedy causes

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

838, 848 (1999) (“Boerckel’s failure to present three of his federal habeas claims

to the Illinois Supreme Court in a timely fashion has resulted in a procedural

default of those claims.”). See also Snowden v. Singletary, 135 F.3d 732, 736

(11th Cir. 1998) (“[W]hen it is obvious that the unexhausted claims would be

procedurally barred in state court due to a state-law procedural default, we can

forego the needless ‘judicial ping-pong’ and just treat those claims now barred

by state law as no basis for federal habeas relief.”).

As determined above, Trammell procedurally defaulted the trial court

error aspect of ground three, and, as a consequence, this claim is barred from

federal review absent a showing of “actual cause and prejudice” or “manifest

injustice.” See generally Coleman v. Thompson, 501 U.S. 722, 748–51 (1991);

Murray v. Carrier, 477 U.S. 478, 496 (1986). “Cause” must ordinarily be

something external to the defense. Marek v. Singletary, 62 F.3d 1295, 1302

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

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

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

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

1991) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).

To meet the fundamental miscarriage of justice exception, Trammell must

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

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence — that was not presented at trial.” Schlup v. Delo, 513 U.S.

298, 324 (1995). This exception is not available unless “petitioner shows, as a

factual matter, that he did not commit the crime of conviction.” Ward v. Cain,

53 F.3d 106, 108 (5th Cir. 1995) (denying a certificate of probable cause).

Trammell establishes neither “cause and prejudice” nor a “fundamental

miscarriage of justice.” Therefore, the trial court error claim in ground three is

procedurally barred from federal review and not entitled to a determination on

the merits.

Sub-Claim B: Ineffective Assistance of Counsel:

Trammell alleges that trial counsel was ineffective for not advising him

that the maximum possible sentence was life imprisonment. The Respondent

argues that this sub-claim was not exhausted, but the Respondent fails to

address Trammell’s asserted entitlement to review of this sub-claim under

Martinez, which applies only if (1) a state requires a prisoner to raise a claim of

ineffective assistance of trial counsel in an initial review collateral proceeding,

(2) the prisoner failed to properly raise the ineffective assistance of trial counsel

claim in his state initial review collateral proceeding, (3) the prisoner did not

have collateral counsel or his collateral counsel was ineffective, and (4) the

failure to excuse the procedural default would result in the loss of a

“substantial” claim of ineffective assistance of trial counsel. Martinez, 566 U.S.

at 14. A “substantial” claim is a claim that has “some merit.” Id.

This sub-claim was arguably “fairly presented” as part of Ground One

and, consequently, exhausted. To the extent that it was not, Trammell is not

entitled to review because the sub-claim is not “substantial.” In denying relief

under Ground One, the post-conviction court found “that the Defendant was

fully aware he was facing up to life in prison . . . .” Under Section 2254(e)(1),

such a finding of fact generally binds this Court because “a determination of a

factual issue made by a State court shall be presumed to be correct. The

applicant shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.” Consequently, Trammell is not entitled to relief

under Sub-Claim B in Ground Three.

CONCLUSION

Trammell fails to meet his burden to show that the state court’s decision

was either an unreasonable application of controlling Supreme Court precedent

or an unreasonable determination of fact. As Burt v. Titlow, 571 U.S. 12, 19–20

(2013), recognizes, an applicant’s burden under Section 2254 is very difficult to

meet:

Recognizing the duty and ability of our state-court colleagues to

adjudicate claims of constitutional wrong, AEDPA erects a formidable

barrier to federal habeas relief for prisoners whose claims have been

adjudicated in state court. AEDPA requires “a state prisoner [to] show

that the state court’s ruling on the claim being presented in federal court

was so lacking in justification that there was an error . . . beyond any

possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S.

[86, 103] (2011). “If this standard is difficult to meet” — and it is — “that

is because it was meant to be.” Id., at [102]. We will not lightly conclude

that a State’s criminal justice system has experienced the “extreme

malfunctio[n]” for which federal habeas relief is the remedy. Id., at [103]

(internal quotation marks omitted).

Trammell’s amended petition for the writ of habeas corpus (Doc. 16) is

DENIED. The clerk must enter a judgment against Trammell and CLOSE

this case.

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Trammell is not entitled to a certificate of appealability (“COA”). Under

Section 2253(c)(1), a prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his application. Rather, a

district court must first issue a COA. Section 2253(c)(2) permits issuing a COA

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” To merit a COA, Trammell must show that reasonable

jurists would find debatable both the merits of the underlying claims and the

procedural issues he seeks to raise. See 28 U.S.C. § 22538(c)(2); Slack v.

McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th

Cir 2001). Because he fails to show that reasonable jurists would “find

debatable” either the merits of the claims or the procedural issues, Trammell is

entitled to neither a COA nor leave to appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma

pauperis is DENIED. Trammell must obtain permission from the circuit court

to appeal in forma pauperis.

DONE and ORDERED in Chambers in Tampa, Florida, this 11th day of April,

2023.

[0M EAREER

UNITED STATES DISTRICT JUDGE

22.