Hill v. Secretary Department Of Corrections (Citrus County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

STEPHEN ALLEN HILL,

Petitioner,

v. Case No.: 5:23-cv-437-WFJ-PRL

SECRETARY, DEPARTMENT OF

CORRECTIONS AND ATTORNEY

GENERAL, STATE OF FLORIDA,

Respondents.

___________________________________/

ORDER

Petitioner, a Florida prisoner, instituted this action by filing a petition for writ

of habeas corpus under 28 U.S.C. § 2254 (Doc. 1). At the Court’s direction,

Respondents responded to Petitioner’s petition and filed relevant portions of the state

court record. (Doc. 7). Petitioner filed a reply in support of his petition. (Doc. 12).

Thus, this matter is ripe for review.

The Court has reviewed the entire record. Because the Court may resolve the

petition on the basis of the record, an evidentiary hearing is not warranted. See Rules

Governing Section 2254 Case in the United States District Courts, Rule 8(a). Upon

consideration, the Court concludes that the petition is due to be denied.

I. BACKGROUND

In May 2018, Petitioner was charged, by information, with aggravated battery

of a law enforcement officer (Count 1); resisting a law enforcement officer with

violence (Count 2); and driving while license suspended or revoked (Count 3). (Doc.

7-1 at 13–14). The State also filed two separate notices: an intent to seek habitual

offender status and that Petitioner qualified as a prison releasee reoffender. (Doc. 7-1

at 16, 18). In January 2019, he was charged by amended information with aggravated

battery of a law enforcement officer (Count 1); aggravated assault of a law enforcement

officer (Count 2); resisting a law enforcement officer with violence (Count 3); and

driving while license suspended or revoked (Count 4). (Doc. 7-1 at 20–21).

On January 24, 2019, a jury convicted Petitioner on all four counts as charged.

(Doc. 7-1 at 237, 239, 241, 243). On February 27, 2019, he was sentenced as a habitual

offender to life imprisonment for Count 1, concurrent habitual offender sentences of

30 years for Count 2 and ten years for Count 3, and time served for Count 4. (Doc. 7-1

at 299). Petitioner appealed. (Doc. 7-1 at 301). On March 3, 2020, Florida’s Fifth

District Court of Appeal (“Fifth DCA”) per curiam affirmed the judgment and

sentence. (Doc. 7-1 at 393); Hill v. State, 291 So. 3d 958 (Fla. 5th DCA 2020). Mandate

issued March 27, 2020. (Doc. 7-1 at 395). Petitioner’s belated motion for rehearing

was stricken as untimely. (Doc. 7-1 at 402).

On June 1, 2021, Petitioner moved, under Rule 3.800(a), Florida Rules of

Criminal Procedure, to correct his sentence. (Doc. 7-1 at 404–08). He claimed the

Prison Releasee Reoffender designations on Counts 1 and 2 were illegal. On July 13,

2021, the state court denied the motion. (Doc. 7-1 at 410–23). Petitioner did not

appeal.

On July 12, 2021, Petitioner moved, under Rule 3.850, Fla. R. Crim. P., for

postconviction relief. (Doc. 7-1 at 425–44). Petitioner raised three grounds, with four

subgrounds, of ineffective assistance of counsel. The trial court summarily denied the

motion. (Doc. 7-1 at 446–64). Petitioner appealed. (Doc. 7-1 at 466). On January 21,

2022, the Fifth DCA affirmed in part and reversed in part.1 (Doc. 7-1 at 468–69).

Following the remand, an evidentiary hearing was held on August 9, 2022. See Doc.

7-1 at 483–507. The postconviction court denied the claim at the hearing and entered

a written order on August 17, 2022. (Doc. 7-1 at 509–12). Petitioner appealed. (Doc.

7-1 at 514). On May 23, 2023, the Fifth DCA per curiam affirmed. (Doc. 7-1 at 571).

Mandate issued July 10, 2023. (Doc. 7-1 at 581).

Petitioner filed his petition for writ of habeas corpus in this Court on July 10,

2023. (Doc. 1). Respondents filed a response, arguing that the petition be denied in all

respects. (Doc. 7). Petitioner filed a reply. (Doc. 12). Thus, the amended petition is

ripe for review.

II. LEGAL STANDARDS

A. The Antiterrorism Effective Death Penalty Act (“AEDPA”)

Under the AEDPA, habeas relief may not be granted regarding a claim

adjudicated on the merits in state court unless the adjudication of the claim:

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

1 In his final ground, Petitioner alleged that his trial counsel was ineffective in failing to object

to the jury instruction on the use of non-deadly force, or alternately for failing to request a

jury instruction on the use of deadly force. (Doc. 7-1 at 469). The Fifth DCA determined that

the postconviction court’s order did not address this ground, and the attached records did not

refute the allegations. Id.

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) 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.

28 U.S.C. § 2254(d). 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 v. Taylor, 529 U.S. 362, 412 (2000).

“[S]ection 2254(d)(1) provides two separate bases for reviewing state court

decisions; the ‘contrary to’ and ‘unreasonable application’ clauses articulate

independent considerations a federal court must consider.” Maharaj v. Sec’y for Dep’t.

of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was

discussed by the Eleventh Circuit in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

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

state court arrives at a conclusion opposite to that reached by [the United

States Supreme Court] on a question of law or if the state court decides a

case differently than [the United States Supreme 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 [the United States

Supreme Court’s] decisions but unreasonably applies that principle to the

facts of the prisoner’s case.

If the federal court concludes that the state court applied federal law incorrectly,

habeas relief is appropriate only if that application was “objectively unreasonable.” Id.

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if

the state court’s decision “was based on an unreasonable determination of the facts in

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

factual issue made by a state court, however, shall be presumed correct, and the habeas

petitioner shall have the burden of rebutting the presumption of correctness by clear

and convincing evidence. See Parker, 244 F.3d at 835−36; 28 U.S.C. § 2254(e)(1).

B. Ineffective Assistance of Counsel

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme

Court established a two-part test for determining whether a convicted person is entitled

to relief on the ground that his counsel rendered ineffective assistance. A court must

ask: (1) whether counsel’s performance was deficient and “fell below an objective

standard of reasonableness”; and (2) whether the deficient performance prejudiced the

defense. Id. at 687–88. While engaging in this inquiry, a court must adhere to a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance. Id. at 689–90. And where, as here, the court examines the

performance of an experienced trial counsel, the presumption that his or her conduct

was reasonable is even stronger. See Fugate v. Head, 261 F.3d 1206, 1216 (11th Cir.

2001). “Thus, 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.” Strickland, 466 U.S. at 690; see also Gates

v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

As observed by the Eleventh Circuit, the test for ineffective assistance of

counsel:

has nothing to do with what the best lawyers would have done. Nor is

the test even what most good lawyers would have done. We ask only

whether some reasonable lawyer at the trial could have acted, in the

circumstances, as defense counsel acted at trial. Courts also should at the

start presume effectiveness and should always avoid second guessing

with the benefit of hindsight. Strickland encourages reviewing courts to

allow lawyers broad discretion to represent their clients by pursuing their

own strategy. We are not interested in grading lawyers’ performances;

we are interested in whether the adversarial process at trial, in fact,

worked adequately.

White v. Singletary, 972 F.2d 1218, 1220−21 (11th Cir. 1992) (citation omitted). Under

those rules and presumptions, “the cases in which habeas petitioners can properly

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

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

III. ANALYSIS

A. Ground One

Petitioner states that trial counsel was ineffective and that the cumulative effect

of counsel’s errors denied him fair and impartial legal proceedings. (Doc. 1 at 4–7).

Specifically, he claims counsel (a) failed to argue, during the motion for judgment of

acquittal, that there was insufficient evidence to demonstrate that his truck was used

in a manner likely to cause death or great bodily harm; (b) failed to object, request a

mistrial, or request a curative instruction when the trial prosecutor invited the jury to

rest its verdict on speculation; and (c) failed to object to opinion testimony elicited

from the law enforcement victim as improper and inadmissible. To assess this claim,

the Court applies the familiar and deferential Strickland test pursuant to the AEDPA.

The High Court has explained the difficulty a petitioner faces to meet his or her

burden under § 2254 as amended by the AEDPA:

It bears repeating that even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable. See Lockyer [v.Andrade, 538

U.S. 63,] 75, 123 S. Ct. 1166[, 155 L. Ed. 2d 144 (2003)].

If this standard is difficult to meet, that is because it was meant to be. As

amended by AEDPA, § 2254(d) stops short of imposing a complete bar

on federal-court relitigation of claims already rejected in state

proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S. Ct. 2333, 135

L. Ed. 2d 827 (1996) (discussing AEDPA’s “modified res judicata rule”

under § 2244). It preserves authority to issue the writ in cases where there

is no possibility fairminded jurists could disagree that the state court’s

decision conflicts with this Court's precedents. It goes no further. Section

2254(d) reflects the view that habeas corpus is a “guard against extreme

malfunctions in the state criminal justice systems,” not a substitute for

ordinary error correction through appeal. Jackson v. Virginia, 443 U.S.

307, 332, n.5, 99. S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (Stevens, J.,

concurring in judgment). 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, 102−03 (2011).

Here, Petitioner must establish that the state courts’ rulings on the claim he is

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

understood and comprehended in existing law beyond any possibility for fairminded

disagreement. See id. at 103. Because the Fifth DCA per curiam affirmed the collateral

court’s denial of this claim and subclaims, the Court must assess Ground One by

“‘look[ing] through’ the unexplained decision to the last related state-court decision

that does provide a relevant rationale.” See Wilson v. Sellers, 584 U.S. 122, 125 (2018).

In his postconviction motion, Petitioner raised the same three claims of

ineffective assistance of counsel and the cumulative error claim. (Doc. 7-1 at 432–37).

The postconviction court specifically addressed and rejected each claim:

1. Failure to argue insufficient evidence during judgment of acquittal

In Sub-claim A, the Defendant alleges his trial counsel was

ineffective for failing to argue the judgment of acquittal for Count I. He

claims trial counsel should have argued that the State had insufficient

evidence to support that the "Defendant's pickup truck was actually used

in a manner likely to cause death or great bodily harm." The Defendant

contends trial counsel only argued that he did not "intentionally touch"

the victim.

Under Florida Rule of Criminal Procedure 3.380 the Court or a

party may seek a judgment of acquittal if "the evidence is insufficient to

warrant a conviction." Previous versions of Rule 3.380 required the

movant to "fully set forth specific grounds" and motion for judgment of

acquittal may be inadequate if it does "not sufficiently set forth the

grounds upon which relief was requested." Spioch v. State, 954 So. 2d 47

(Fla. 5th DCA 2007). In the current version, there is no standard on how

that should be argued only requires an argument the evidence is

insufficient to warrant a conviction. Generally, "courts should not grant

a motion for judgment of acquittal unless the evidence is such that no

view which the jury may lawfully take of it favorable to the opposite party

can be sustained under the law." Lynch v. State, 293 So. 2d 44, 45 (Fla.

1974).

The Defendant was charged with aggravated battery of law

enforcement officer under section 784.045(1)(a)2, Florida Statutes. See

attached Amended Information. Section 784.045(1)(a)2, Florida Statutes

(2018) states that, "[a] person commits aggravated battery who, in

committing battery ... [ u ]ses a deadly weapon." The offense of battery

occurs "when a person ... [a]ctually and intentionally touches or strikes

another person against the will of the other; or ... [i]ntentionally causes

bodily harm to another person."§ 784.03(1)(a), Fla. Stat. (2018)

(emphasis added). A deadly weapon is defined as an "instrument that will

likely cause death or great bodily harm when used in the ordinary and

usual manner contemplated by its design." Michaud v. State, 47 So. 3d

374, 376 (Fla. 5th DCA 2010). A deadly weapon can also be "any

instrument likely to cause great bodily harm because of the way it is used

during the crime." D.C. v. State, 567 So. 2d 998 (Fla. 1st DCA 1990).

The State had to show that while committing the battery the

Defendant used a deadly weapon. Trial counsel argued that the State

failed to prove an element of the aggravated battery. See attached Trial Tr.

88:7-14. She argued that the State did no[t] prove that the Defendant

"intentionally touched Deputy Miller with a deadly weapon." Id. A

requirement of battery is that the person intentionally touch the victim.

An automobile may qualify as a "deadly weapon," if used in the course

of committing a crime. See Jenkins v. State, 747 So. 2d 997 (Fla. 5th DCA

1999). Trial counsel sought to refute the State's allegations by showing

that the touching was not intentional. The trial counsel's argument

challenges the sufficiency of the evidence thus, trial counsel was not

ineffective in her arguments for judgment of acquittal.

(Doc. 7-1 at 448-49) (formatting omitted). Petitioner appealed and the Fifth DCA

affirmed the denial of this ground. (Doc. 7-1 at 468–69).

2. Failure to object, request a mistrial, or request a curative instruction

In the Defendant's Sub-claim B, he alleges trial counsel was

ineffective for failing to object to misstatements by the State and seek a

mistrial. He contends the State made statements during closing

arguments that should have been objected. The Defendant argues the

improper statement was: "if someone goes underneath the tires, what's

going to happen to them? They might- they'll break bones. They could

die." See attached Trial Tr., 118. He claims the comment is an "erroneous"

statement of the law which would have led the jury to speculate.

In claims involving trial counsel's decision to object, the Court

must determine whether an objection was warranted and whether it

would have made a difference in the outcome of the trial. See State v.

Bouchard, 922 So. 2d 424 (Fla. 2d DCA 2006). In this case, trial counsel

had no basis to object. The State made the following statement during

closing.

Cars can absolutely be a deadly weapon, because if

someone goes underneath the tires, what's going to happen

to them? They -- they might -- they'll break bones. They

could die. Luckily, in this case, that didn't happen. But

absolutely a car can be used as a deadly weapon. And, Your

Honor -- and, members of the jury, the defendant absolutely

touched Deputy Miller against his will.

Trial Tr., 118:5-13. There was no improper statement to object and there

is no evidence that a different outcome would have occurred.

(Doc. 7-1 at 449–50). Petitioner appealed and the Fifth DCA affirmed the denial of

this ground. (Doc. 7-1 at 468–69).

3. Failure to object to opinion testimony from the victim

Next, in Subclaim C, the Defendant alleges his trial counsel was

ineffective for eliciting improper and inadmissible testimony. He claims

the victim testified he believed the Defendant used his vehicle in a

manner likely to cause death or great bodily harm. The Defendant argues

the testimony is not admissible.

As noted above the Defendant was charged with aggravated

battery with a deadly weapon and the weapon was his vehicle. At trial,

the victim, Deputy David Miller testified,

[the Defendant] slapped my hand away as I was reaching

for the keys, at which time he was able to start the truck. I

noticed that it was a manual transmission truck, so, again,

I reached up to get the keys out, which I'm unable to do at

that time because the vehicle started. And, at that time, I

feel the door pillar or doorjamb where the door closes -- that

part hits me in my side. So now I'm in the vehicle and then

all of a sudden -- I feel myself hopping along with the

vehicle.

So, at this time, I'm going from law enforcement -- I've got

to detain a wanted subject, to kind of survival mode, like,

I've got to get out of this vehicle before either, A, I get ran

over or, B, I get drug with this vehicle. So, at that time, I

either pushed off of his arm or his shoulder area to free

myself, because, basically, what it was, my vest had gotten

caught. It was either caught on him or on the doorjamb. It

was caught on something at that time where I couldn't just

slide out of the vehicle. I had to physically push myself and,

like, unhook whatever was stuck to push myself out of the

vehicle.

See attached Trial Tr., 39–40.

On cross examination, Deputy Miller testified he was not in front

of the vehicle and he did not get hurt. Id. at 60. He did testify the vehicle

"hit" him, but his vest got "stuck" in the vehicle. Id. at 60. Later, Deputy

Miller confirmed that the Defendant used the vehicle in a manner likely

to cause death or great bodily harm. Id. at 61. Contrary to the Defendant's

assertions a witness may comment/testify as to their opinions about the

Defendant's guilt. It is the role of the jury to determine whether it is

credible. Deputy Miller's statements are admissible. Thus, trial counsel

was not deficient in cross-examining the victim.

(Doc. 7-1 at 450–51). Petitioner appealed and the Fifth DCA affirmed the denial of

this ground. (Doc. 7-1 at 468–69).

The trial court’s decisions were not contrary to, or an unreasonable application

of, clearly established law. First, the court identified Strickland as the ineffective

assistance of counsel standard. (Doc. 7-1 at 447). Moreover, the state court analyzed

Petitioner’s claims to determine whether he suffered any prejudice due to his counsel’s

actions. (Id. at 447–51). Thus, the state court correctly identified Strickland as the

controlling law and properly applied it to Petitioner’s ineffective assistance of counsel

claims. See Robinson v. Moore, 300 F.3d 1320, 1343 (11th Cir. 2002) (holding that, “[i]t

is well established that the Supreme Court's decision in Strickland is the controlling

legal authority to be applied to ineffective assistance of counsel claims”) (quotation

omitted). Finally, because Petitioner offers no evidence that the state court's decision

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

presented,” he has not met his burden of proving by clear and convincing evidence

that the state court's factual findings were incorrect. See 28 U.S.C. § 2254(d)(2), (e)(1).

Further, to the extent Petitioner argues that the cumulative effect of counsel’s

errors “resulted in conviction for aggravated battery that otherwise could not have

been obtained.” (Doc. 1 at 6). He raised this claim in his postconviction motion. (Doc.

7-1 at 436–37). The postconviction court denied the claim and the Fifth DCA affirmed.

(Doc. 7-1 at 451, 468–69).

Here, Petitioner has not established prejudice as to any individual claim or the

collective effect of any deficient performance on the trial. See Morris v. Sec’y, Dep’t of

Corr., 677 F.3d 1117, 1132 (11th Cir. 2012) (rejecting claim of cumulative error since

“none of [petitioner’s] individual claims of error or prejudice have any merit, and

therefore we have nothing to accumulate”). In all events, absent Supreme Court

precedent applying the cumulative error doctrine to ineffective assistance of counsel

claims, the state court’s denial of the claim was not contrary to, or an unreasonable

application of, clearly established federal law. See Forrest v. Fla. Dep’t of Corr., 342 F.

App’x 560, 565 (11th Cir. 2009). Accordingly, Ground 1 is denied under § 2254(d).

B. Ground Two

Petitioner states that trial counsel was ineffective for “fail[ing] to argue at

judgment of acquittal that the State failed to prove any conduct that could reasonably

be viewed as a threat as it relates to Count 2, aggravated assault.” (Doc. 1 at 7–8). In

his postconviction motion, Petitioner alleged trial counsel’s motion for acquittal was

insufficient. (Doc. 7-1 at 438–39). He claimed counsel should have argued that because

the State’s evidence failed to establish he made a credible threat to the officer he could

not be convicted of aggravated assault of a law enforcement officer. Id. Thus, he

argued, the State failed to prove all of the elements of the charged crime. The

postconviction court summarily denied relief, concluding that Petitioner could not

show deficient performance or prejudice:

In Ground Two, the Defendant alleges his trial counsel was

ineffective for failing to adequately argue the judgment of acquittal as to

Count II. He claims trial counsel failed to argue that the State did not

prove that his conduct would be viewed as a threat within the meaning

of aggravated assault.

The Defendant was charged with Aggravated Assault of Law

Enforcement Officer under section 784.021(1)(a) and 784.07, Florida

Statutes. See attached Amended Information. The State alleged the

Defendant threatened the victim using a deadly weapon, his motor

vehicle. Id. Although trial counsel made no specific arguments about

Count II, the Defendant cannot show prejudice. Prejudice is established

by showing that "there is 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." Strickland, 466 U.S. at 694. The movant must

show something more than a possibility "that the errors had some

conceivable effect on the outcome of the proceeding." Id. at 693.

Here, the Defendant claims if trial counsel pointed out that the

conduct "could be reasonably viewed as a threat" he would have

prevailed. Assault is defined as an "intentional, unlawful threat by

unlawful threat by word or act to do violence to the person of another,

coupled with an apparent ability to do so, and doing some act which

creates a well-founded fear in such other person that such violence is

imminent." § 784.011(1), Fla. Stat. (2018). Aggravated assault requires

the use of a "deadly weapon without intent to kill." § 784.02l(l)(a), Fla.

Stat. (2018). The evidence against the Defendant included the victim,

testifying as to his fear while being pulled by the Defendant's vehicle. See

attached Trial Tr., 58. The Defendant's suggested arguments would not

have changed the outcome.

(Doc. 7-1 at 451–52).

The state court’s denial of this ground is not contrary to, nor an unreasonable

application of, Strickland. The evidence established that while the victim’s vest was

caught on Petitioner’s vehicle he was dragged and he was afraid that he would be run

over or dragged further. (Doc. 7-1 at 61–62). The failure to present a losing argument

does not raise to the level of ineffective assistance of counsel. Accordingly, Ground

Two will be denied under § 2254(d).

C. Ground Three

Petitioner states that trial counsel was ineffective for failing “to object to jury

instructions on use of non-deadly force: where Defendant was charged w/ Aggravated

Battery by using a deadly weapon. Alternatively, failure to request instruction on use

of deadly force.” (Doc. 1 at 9). Petitioner claims that counsel’s request for the jury

instruction on non-deadly force was prejudicial error. Id. The postconviction court

rejected this claim during the evidentiary hearing:

I've heard the testimony of Mr. Lizanich and Ms. Falardeau,

recognized as expert witnesses in the field of criminal law, for this -- for

this hearing. I've heard no testimony from you because it's, really, solely

limited to the legality of what was done at the time of the trial.

There's really no records that are available to conclusively review.

So that's why we had to have a hearing. We've had the hearing.

I don't find anything deficient in Mr. Lizanich's or Ms. Falardeau's

approach to that issue. It's not supported. I understand about the Scintilla

Rule and -- and, you know, if there's any argument at all, that's -- that's

as specious as saying, well, if my argument has a vowel in it, that means

that you should grant the motion because there's a scintilla of evidence.

There was none. There was zero. There was nothing.

And, as such, I still went, as the -- Ms. Falardeau pointed out, in

an abundance of caution, I gave the instructions on the non-deadly force,

which I didn't even have to, but I did anyway.

So I find there is conclusively, now, no support at all for that

ineffective assistance of counsel claim that was raised in your pleadings.

I know Mr. Dozier's kind of soft-pedaling that, saying, I'm really not

saying they did anything wrong; you, Judge, you're the one who messed

it up because you didn't give both -- both orders.

I didn't need to give -- I didn't even need to give the one I did give.

So it's for those reasons and the other reasons expressed by the

testimony of the witnesses that your motion stands denied.

(Doc. 7-1 at 504–06). The postconviction court summarized the ruling in a written

order:

… The attorneys that represented the defendant at trial knew, and

argued, the Defendant was entitled to jury instructions on both justifiable

use of deadly and non-deadly force. They attempted to make their

arguments, but due to something completely out of their control, the

argument was stopped.

The Defendant’s only claim was ineffective assistance of counsel,

which clearly was not proven based on the testimony and evidence

presented at the hearing. The Defendant has failed to meet his burden.

(Doc. 7-1 at 511-12).

The state court’s denial of this ground is not contrary to, nor an unreasonable

application of, Strickland. The testimony at the evidentiary hearing established that

counsel knew Petitioner was entitled to and requested jury instructions on both

justifiable use of deadly and nondeadly force, but that argument was rejected by the

trial court. Accordingly, Ground Three will be denied under § 2254(d).

IV. CONCLUSION

Accordingly, the Petition (Doc. 1) is DENIED. The Clerk will enter judgment

for Respondents and against Petitioner and close this case. The Court denies a

certificate of appealability, as Petitioner has not made a substantial showing of a denial

of a constitutional right. See 28 U.S.C. § 2253(c)(2). Because Petitioner is not entitled

to such a certificate, the Court will not grant in forma pauperis status for an appeal.

DONE AND ORDERED at Tampa, Florida, on December 19, 2024.

litho,

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Pro Se Party

Counsel of Record

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