O'Relly v. Secretary Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-82549-Middlebrooks/Matthewman

JAVIER O’RELLY,

Petitioner,

v.

SECRETARY, DEPARTMENT OF

CORRECTIONS, STATE OF FLORIDA,

Respondent.

______________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON PETITIONER’S PETITION UNDER 28 U.S.C. § 2254 BY A PERSON IN STATE

CUSTODY PURSUANT TO A STATE COURT JUDGMENT [DE 1]

THIS CAUSE is before the Court upon Petitioner Javier O’Relly’s (“Petitioner”) Petition

under 28 U.S.C. § 2254 by a Person in State Court Custody Pursuant to a State Court Judgment

(“Petition”) [DE 1]. The matter was referred to the undersigned United States Magistrate Judge by

the Honorable Donald M. Middlebrooks, United States District Judge. See DE 5. Respondent, the

Secretary of the Department of Corrections, State of Florida (“Respondent”), has filed a response

to the Petition [DE 19], an Appendix [DE 20], and transcripts [DE 21]. Petitioner has filed a reply

[DE 23]. The Court has reviewed and carefully considered the Petition, the response, the reply, the

exhibits, the transcripts, and all pertinent portions of the underlying criminal file.

I. BACKGROUND

This case originated in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm

Beach County, Florida (case number 502016CF002773AXXXMB). [DE 20-1, Ex. 1]. On

November 16, 2016, Petitioner was charged by an Amended Information with one count of

attempted second degree murder with a firearm, in violation of sections 777.04(1), 782.04(2), and

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775.087(1) and (2), Florida Statutes. [DE 20-1, Ex. 3].

On April 6th, 2017, after a jury trial, the jury found Petitioner guilty of attempted

manslaughter by act, a lesser included offense. [DE 20-1, Ex. 8]. The jury also found that Petitioner

actually possessed a firearm. Id. Petitioner was adjudicated guilty of attempted manslaughter by

act with a firearm. [DE 20-1, Ex. 9].

The State recommended that Petitioner be sentenced to the maximum sentence of fifteen

years [DE 20-1, Exs. 10, 13], Petitioner argued for the lowest permissible sentence of 22.2 months

[DE 20-1, Ex. 11], and the state court sentenced Petitioner to fifteen years in prison [DE 20-1, Ex.

15].

Petitioner appealed his conviction and sentence to the Fourth District Court of Appeal for

the State of Florida. [DE 20-1, Exs. 16, 17]. The Fourth District Court of Appeal then affirmed

Petitioner’s conviction without comment. [DE 20-2; Exs. 25, 26]; O’Relly v. State, 255 So. 3d 218

(Fla. 4th DCA 2018).

While the appeal was pending, Petitioner filed in the trial court a motion to correct

sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). [DE 20-1, Ex. 19]. The

state court denied Petitioner’s motion. [DE 20-1, Ex. 21].

Next, Petitioner filed a motion for reduction of sentence in the trial court under Florida

Rule of Criminal Procedure 3.800(c). [DE 20-2, Ex. 27]. The trial court also denied this motion.

[DE 20-2, Ex. 28].

Petitioner then filed a motion for post-conviction relief under Florida Rule of Criminal

Procedure 3.850 in the trial court. [DE 20-2, Ex. 29]. The state court denied Petitioner’s motion

for post-conviction relief. [DE 20-3, Ex. 33]. Petitioner then appealed the state court’s order on his

motion for post-conviction relief to the Fourth District Court of Appeal. [DE 20-3, Exs. 34, 35].

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The Fourth District affirmed the trial court’s order without comment. [DE 20-4, Ex. 40]; O’Relly

v. State, 321 So. 3d 755 (Fla. 4th DCA 2021).

Petitioner now petitions this Court for a writ of habeas corpus. [DE 1]. Petitioner seeks

relief on eight different grounds: 1) that Petitioner’s due process rights were violated when the

state court improperly considered a mens rea at sentencing for a charge which Petitioner had been

acquitted; 2) that Petitioner’s due process rights were violated by the prosecutor’s comments

during closing argument; 3) that Petitioner was denied effective assistance of counsel when his

counsel failed to object to the trial court’s untimely ruling on Petitioner’s motion for judgment of

acquittal; 4) that Petitioner was denied effective assistance of counsel when his counsel failed to

retain an independent crime scene investigator; 5) that Petitioner was denied effective assistance

of counsel when his counsel advised him not to testify; 6) that Petitioner was denied effective

assistance of counsel when his counsel failed to object to confusing and misleading jury

instructions; 7) that Petitioner was denied effective assistance of counsel when his counsel failed

to object and move for a mistrial when the prosecutor used religious imagery during closing

argument; and 8) that Petitioner was denied effective assistance of counsel when his counsel did

not object at to the state court improperly considering a mens rea for a charge which Petitioner had

been acquitted at sentencing. [DE 1].

II. LEGAL STANDARDS

A. Standard of Review Under 28 U.S.C. § 2254

Under 28 U.S.C. § 2254(d), an individual in state custody is entitled to federal habeas

corpus relief only on the ground that he is in custody in violation of the United States Constitution

or laws or treaties of the United States. To obtain habeas corpus relief from a federal court, a

prisoner must demonstrate that the state court’s ruling on the claim: 1) resulted in a decision that

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

determined by the Supreme Court of the United States; or 2) 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)(1)-(2) (2018); see also Williams v. Taylor, 529 U.S. 362, 405–06

(2000); Fugate v. Head, 261 F.3d 1206, 1215–16 (11th Cir. 2001).

“A state-court decision is contrary to this Court’s clearly established precedents if it applies

a rule that contradicts the governing law set forth in this Court’s cases, or if it confronts a set of

facts that is materially indistinguishable from a decision of this Court but reaches a different

result.” Brown v. Payton, 544 U.S. 133, 141 (2005); Williams, 529 U.S. at 405–06. “A state-court

decision involves an unreasonable application of this Court’s clearly established precedents if the

state court applies such precedents to the facts in an objectively unreasonable manner.” Id. In the

context of habeas petitions, “clearly established Federal law” refers to the holdings of the Supreme

Court’s decisions as of the time of the relevant state court decision. Hall v. Head, 310 F.3d 683,

690 (11th Cir. 2002) (citing Williams, 529 U.S. at 412). Federal courts are required to presume the

correctness of the state court’s factual findings unless the petitioner overcomes them by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1); Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.

2001).

The Supreme Court repeatedly has held that “[t]he petitioner carries the burden of proof”

and that the § 2254(d)(1) standard is a high hurdle to overcome. See Bobby v. Dixon, 565 U.S. 23,

24 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102–03 (2011)); Cullen v. Pinholster, 563

U.S. 170, 180 (2011). State court decisions must be given a strong presumption of deference even

when the state court adjudicates a petitioner’s claim summarily. See Richter, 560 U.S. at 96–100;

Gill v. Mecusker, 633 F.3d 1272, 1288 (11th Cir. 2011).

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B. Exhaustion

Under 28 U.S.C. § 2254(b)–(c), petitioners are required to exhaust their claims by fairly

presenting them to the state courts for adjudication before presenting them in a federal habeas

petition. When petitioners do not properly present their claims, exhaust their claims, and comply

with the applicable state procedure, § 2254 may bar federal review of those claims in federal court.

See Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (citing 28 U.S.C. § 2254(b)–(c)).

Before filing a federal habeas action, a state prisoner must exhaust state court

remedies, either on direct appeal or in a state post-conviction motion. 28 U.S.C. §

2254(b), (c). 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, 109 S.Ct. 1056,

1060, 103 L.Ed.2d 380 (1989).

Generally, procedural default can arise in two ways: (1) where the state court

correctly applies a procedural default principle of state law to arrive at the

conclusion that the petitioner's federal claims are barred; or (2) when the petitioner

never raised the claim in state court, and it is obvious that the state courts would

hold it to be procedurally barred if it were raised now. Federal habeas courts are

precluded from deciding the merits of a claim that is procedurally barred, except in

two circumstances: (1) where the petitioner makes a showing of adequate cause and

actual prejudice, or (2) where the failure to consider the claim would result in a

fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749–50,

111 S.Ct. 2546, 2564–65, 115 L.Ed.2d 640 (1991); Marek v. Singletary, 62 F.3d

1295, 1301–02 (11th Cir. 1995).

Cortes v. Gladish, 216 Fed. Appx. 897, 899 (11th Cir. 2007).

C. Standard for Ineffective Assistance of Counsel

“In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court established a

two-prong test for evaluating claims of ineffective assistance of counsel. “Under the ‘performance’

prong, the defendant must show that counsel’s performance ‘fell below an objective standard of

reasonableness.’” King v. U.S., 250 F. App'x. 930, 932 (11th Cir. 2007) (citing Strickland, 466

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U.S. at 688). Under the ‘prejudice’ prong, the defendant must show that counsel’s deficient

performance prejudiced the defendant and that, “but for the attorney’s error, the outcome of the

proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 694). The burden of

persuasion is on a petitioner to prove, by a preponderance of competent evidence, that counsel’s

performance was unreasonable. See Strickland, 466 U.S. at 688. The petitioner must establish that

particular and identified acts or omissions of counsel “were outside the wide range of

professionally competent assistance.” Chandler v. United States, 218 F.3d 1305, 1313, 1314 (11th

Cir. 2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987); see also Strickland, 466 U.S. at

686 (stating that petitioner must show “counsel’s representation fell below an objective standard

of reasonableness”, which means that counsel’s performance was unreasonable “under prevailing

professional norms. . . considering all of the circumstances”).

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting

for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is

all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude

that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689. When

assessing a lawyer’s performance, “[c]ourts must indulge the strong presumption that counsel’s

performance was reasonable and that counsel made all significant decisions in the exercise of

reasonable professional judgment.” Chandler, 218 F.3d at 1314 (11th Cir. 2000). When assessing

ineffective assistance of counsel claims, the court’s role is not to “grade a lawyer’s performance;

instead, [the court] determine[s] only whether a lawyer’s performance was within the wide range

of professionally competent assistance.” Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1322

(11th Cir. 2002) (quoting Strickland, 466 U.S. at 690) (internal quotation marks omitted).

“Intensive scrutiny and second-guessing of attorney performance are not permitted.” Spaziano v.

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Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994).

III. ANALYSIS

Initially, Respondent concedes that the Petition was timely filed. [DE 19 at 25]. Because

Respondent has waived this statute of limitations defense, the Court need not determine whether

the waiver is accurate. See 28 U.S.C. § 2244(d)(1)-(2); Wood v. Milyard, 566 U.S. 463, 473 (2012)

(citing Day v. McDonough, 547 U.S. 198, 210-11 (2006)). Thus, the Petition is timely.

A. Grounds One and Two

i. Exhaustion

Respondent argues that Petitioner has not properly exhausted all his claims. [DE 19 at 25–

29]. Specifically, Respondent argues that Ground One and parts of Ground Two are procedurally

barred because defense counsel failed to object and preserve these grounds at trial. See id. at 26–

27. Thus, Respondent asserts the claims were procedurally barred on direct appeal. See id.

Petitioner responds by asserting that the grounds are exhausted because they were raised in

Petitioner’s direct appeal. [DE 23 at 2].

The Court disagrees with Respondent’s arguement that these grounds are procedurally

barred. It is true that, in Florida, a timely objection must be made with the trial court for the issue

to be considered “preserved” for appeal. § 924.051(1)(b), Fla. Stat. However, this does not mean

that the claim is procedurally barred from appellate review. Instead, the claim would be subject to

the fundamental error standard. § 924.051(3), Fla. Stat. (“A judgment or sentence may be reversed

on appeal only when an appellate court determines after a review of the complete record that

prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved,

would constitute fundamental error.”); Jackson v. State, 983 So.2d 562, 568 (Fla. 2008); Bates v.

Secretary, Fla. Dep’t of Corrections, 768 F.3d 1278, 1297 (11th Cir. 2014). Because Grounds One

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and Two were raised in Petitioner’s direct appeal, they were not procedurally barred, but subject

to fundamental error review. See DE 20-1, Ex. 22. Accordingly, Grounds One and Two are

exhausted and procedural default analysis does not apply. Thus, the Court will now proceed to

review the merits of Grounds One and Two of the Petition.

ii. Merits of Ground One

Petitioner asserts that the state court considered a mens rea at sentencing that corresponded

to an offense of which Petitioner had been acquitted. [DEs 1; 15 at 4]. To support his contention,

Petitioner points to the following statement made by the judge at sentencing: “I’ve considered the

facts of this case, the pure recklessness and callousness of [Petitioner’s] actions with no concern

if [he] harmed someone or not.” Id. at 6; [DE 21-2 at 18]. Petitioner contends this statement shows

that the trial court considered a mens rea applicable to attempted second degree murder and not

the charge that Petitioner was convicted of--attempted manslaughter by act. [DE 15 at 6]. As a

result, Petitioner asserts his due process rights were violated. Id.

In response, Respondent asserts that the factors considered by the trial court are also

relevant to the charge Petitioner was convicted of, attempted manslaughter by act, and that a

Florida trial court is permitted to consider the totality of the circumstances of the crime. [DE 19 at

47].

In reply, Petitioner contends that the trial court’s consideration goes beyond or is

distinguishable from the precedent cited in Respondent’s response. [DE 23 at 3–4].

Here, the Court finds that Petitioner fails to meet his burden in proving that the trial court’s

consideration at sentencing is contrary to clearly established federal law. Generally, the Court

agrees that it would be improper to consider a mens rea of a crime of which a defendant was

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acquitted. See Townsend v. Burke, 334 U.S. 736, 740–41 (1948). However, the state court in

denying Petitioner’s Rule 3.850 motion explained the following:

The Court agrees that it would be improper to consider the mens rea of [a] crime

Defendant was not charged with or was acquitted of, but that is not what the trial

court did. See Dinkines v. State, 122 So. 3d 477,481 (Fla. 4th DCA 2013). The

Court did consider Defendant’s “callousness” and “recklessness,” but these factors

would be insufficient to prove the “depraved mind” intent needed to sustain an

attempted second degree murder charge. See Light v. State, 841 So. 2d 623, 626

(Fla. 2d DCA 2003) (holding that “extreme recklessness” is not enough to show a

depraved mind). A defendant possesses a “depraved mind” if he or she does

something that: 1) an ordinary person knows is reasonably certain to kill or do

serious bodily injury, 2) is done from “ill will, hatred, spite, or an evil intent,” or 3)

indicates an indifference to human life. Wiley v. State, 60 So. 3d 588, 591 (Fla. 4th

DCA 2011). The trial court considered none of these heightened intents, and thus

it used proper factors in considering Defendant’s sentence.

[DE 20-3 at 240–41].

This Court agrees with the state court. Petitioner has not shown that the trial court

considered the heightened intent of attempted second degree murder when the sentencing judge

merely considered the “callousness” and “recklessness” of Petitioner’s actions. As the state court

explained, “callousness” and “recklessness” are not synonymous with “depraved mind.” Id.

Further, Petitioner fails to explain how the sentencing judge’s consideration is improper

regarding the offense for which Petition was convicted. The Florida Criminal Punishment Code

allows the trial court to consider the severity and circumstances surrounding the offense. §

921.002(1)(c), Fla. Stat. Considering this standard and the facts underlying Petitioner’s crime,

Petitioner fails to meet his burden in proving that the trial court violated clearly established federal

law. Accordingly, the Court RESPECTFULLY RECOMMENDS that the United States District

Judge DENY the Petition as to Ground One.

iii. Merits of Ground Two

Petitioner next asserts that his due process rights were violated by comments the prosecutor

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made during closing argument which the trial court allowed. [DE 1 at 7]. Petitioner argues that the

prosecutor “demonized [Petitioner], confused the jury about the burden of proof and

misrepresented the factual record, which collectively interfered [with] Petitioner’s right to a fair

trial[.]” Id. Petitioner points to the following comments made by the prosecutor to support his

argument: 1) that the victim “hand an angel looking over her” and “[i]t is a miracle she is alive”;

2) that the victim would have died “if the bullet’s trajectory was different by ‘mere millimeter’”;

3) repeated use of the word “evil”; 4) various alleged mischaracterizations of the law including the

statement “[n]one of this case makes sense whatsoever, and that’s what makes it of a depraved

mind[]”; and 5) misstating a witness description concerning star or luxury rims. Id. at 5–6.

In response, Respondent argues that the prosecutor’s comments do not employ improper

religious imagery, but are a generic hyperbole not intended to inflame the jury. [DE 19 at 54–55].

Further, Respondent points out that the prosecutor used the word “evil” to refer to an element of a

charged crime, attempted second degree murder. Id. at 56. Also, Respondent argues that any

alleged mischaracterization was done to clarify a mischaracterization made in defense counsel’s

closing argument. Id. at 57–59. Lastly, Respondent asserts that any error or possible prejudice is

cured by the trial judge’s instructions. Id. at 60–62.

In reply, Petitioner argues that the trial court’s instruction is not enough to cure the

comments made by the prosecutor. [DE 23 at 5]. Further, Petitioner contends that “when

considering the cumulative effect of the comments … there can be no doubt that the comments in

question affected the verdict.” Id. at 5.

The “clearly established Federal law” for purposes of Petitioner’s claim is set forth in

Darden v. Wainwright, 477 U.S. 168, 181 (1986); Parker v. Matthews, 567 U.S. 37, 45–49 (2012);

Medina v. Sec'y, Dep't of Corr., 733 Fed. Appx. 490, 494 (11th Cir. 2018). In Darden, the Supreme

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Court held that improper comments by a prosecutor violate due process if they “so infected the

trial with unfairness as to make the resulting conviction a denial of due process.” 477 U.S. at 181

(quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). “It is not enough that the prosecutor’s

comments were ‘improper,’ ‘offensive,’ ‘undesirable[,] or even universally condemned.’” Medina,

733 Fed. Appx. at 494 (quoting Darden, 477 U.S. at 181). Rather, the prosecutor’s comments must

render the defendant’s conviction “fundamentally unfair.” Id.; Darden, 477 U.S. at 183.

Here, the Court finds that Petitioner has not met his burden. Indeed, the comments made

in Darden are exceedingly more inflammatory than the cumulative effect of the comments made

here. 477 U.S. at 181 n.11–12 (citations omitted) (finding that the defendant received a fair trial

when the prosecutor made the following comments in closing argument: describing the petitioner

as an “animal”; “[petitioner] shouldn’t be let out of his cell unless he has a leash on him”; and “I

wish someone had walked in the back door and blown [petitioner’s] head off.”). Additionally, any

possible prejudice to Petitioner resulting from the prosecutor’s closing argument was cured by the

trial court’s instruction that the lawyers’ arguments are not evidence or instructions on the law.1

United States v. Bailey, 123 F.3d 1381, 1402 (11th Cir. 1997) (“[A]ny possible prejudice to

[defendant] resulting from the prosecutor's closing argument was cured by instructions from the

district judge that the lawyers' arguments were not evidence and that the jury was to decide the

1 In relevant part, the trial court gave the following instructions:

[T]his case must be decided only upon the evidence that you have heard from the testimony of the

witnesses and have seen in the form of the exhibits in evidence, and these instructions.

Please remember that what the attorneys say is not evidence or your instruction on the law[.]

Remember, the evidence doesn’t come from the lawyers, it comes from the witnesses that

testified. You will rely on your memory of what those witnesses said, okay?

[DE 21-1 at 505, 508, 515].

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case solely on the evidence presented at trial.”). Therefore, the Court RESPECTFULLY

RECOMMENDS that the United States District Judge DENY the Petition as to Ground Two.

B. Ground Three

Preliminary, the Court notes that Respondent does not assert that Ground Three is

unexhausted. [DE 19 at 29–30]. Thus, the Court will proceed to the merits.

Petitioner asserts that he was denied “effective assistance of counsel when counsel failed

to object to the trial court’s failure to timely rule on Petitioner’s motion for judgment of acquittal

as to second degree murder at the close of the state’s case[.]” [DE 1 at 9]. Petitioner alleges that

the delay made it so defense counsel could not change their trial strategy. Id. Petitioner submits

that if he was awarded a timely and favorable ruling, defense counsel would have called Petitioner

to testify as to the intentional act element of the lesser included offense of attempted manslaughter

by act. Id. at 9–10.

In response, Respondent asserts that defense counsel’s failure to object is not deficient, that

Petitioner’s trial strategy would not have changed, and that Petitioner cannot show that the

outcome of the proceeding would have been different. [DE 19 at 64–73].

In reply, Petitioner asserts that “the Court now [is] required to review the record and

determine if the facts as alleged support the finding made by the state court.” [DE 23 at 5–6].

In rejecting Petitioner’s claim on this ground, the trial court reasoned the following:

Defendant's trial strategy would not have changed even if the motion for judgment

of acquittal was granted. The theory of defense presented at trial was that the State

provided no evidence that Defendant was the shooter and that Defendant was

merely in the wrong place at the wrong time. (State Resp., Ex. "R," Trial Tr. 531-

49). Defendant's proposed testimony, where he would admit to committing the act

but claim that his behavior was merely negligent and not intentional, would have

undermined his entire defense at trial … Because there is no reasonable probability

the results of the proceeding would have been different, no prejudice occurred and

Ground I is denied. See Rose v. State, 985 So. 2d 500, 505 (Fla. 2008) (trial court

did not err in denying defendant's postconviction claim of ineffective assistance of

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counsel based on counsel's failure to obtain a timely ruling from the trial court as

the record established there was no prejudice to defendant); Bettey v. State, 244 So.

3d 364, 366-67 (Fla. 1st DCA 2018) (same).

[DE 20-3 at 235–35].

After a thorough review of the record, as requested by Petitioner, the Court finds that

Petitioner does not meet his burden. Considering Strickland’s prejudice prong, Petitioner fails to

show how the outcome of the trial would have been different given Petitioner’s proposed

contradictory trial strategy and the weight of the evidence presented at trial. See DE 21-1 at 61,

112–14, 140–41, 295, 422 (transcribing trial testimony from multiple witnesses indicating that 1)

Petitioner knew there were people on a public beach; 2) Petitioner fired shots multiple times, then

paused, and fired more shots towards the beach; 3) the shots were relatively tightly clustered; and

4) one of the bullets grazed the scalp of a woman sitting on the beach). The state court’s denial of

this claim is neither contrary to, nor an unreasonable application of Strickland. Therefore, the Court

RESPECTFULLY RECOMMENDS that the United States District Judge DENY the Petition as

to Ground Three.

C. Grounds 4, 5, 6, 7, and 8

Petitioner asserts five more ineffective assistance of counsel claims. Respondent argues

that these claims are unexhausted and procedurally barred. [DE 19 at 27–28]. Respondent points

to the fact that these grounds were raised in Petitioner’s Rule 3.850 motion, but they were not

raised in Petitioner’s appeal from the denial of that motion. Id. In reply, Petitioner asserts that he

did not need to include these grounds in his appeal under Florida Rule of Appellate Procedure

9.141(b)(2)(C). [DE 23 at 2]. Petitioner asserts that the appellate court was required to review all

of Petitioner’s claims in his Rule 3.850 motion under Rule 9.141(b)(2)(C), whether or not he raised

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them on appeal, because Petitioner’s Rule 3.850 motion was denied without an evidentiary

hearing. Id.

Petitioner misstates Florida law. In fact, under the applicable law, Petitioner has abandoned

any issues not raised in his brief.2 Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009)

(holding that where all the appellant’s post-convictions claims were summarily denied, but the

appellant chose to file a brief on appeal (even though not required to do so under Fla. R. App. P.

9.141(b)(2)), appellant abandoned any issues not raised in their brief); Hammond v. State, 34 So.

3d 58, 59 (Fla. 4th DCA 2010) (holding when ruling on an appeal of a summary denial of a Rule

3.850 motion, “[c]laims for which an appellant has not presented any argument, or for which he

provides only conclusory argument, are insufficiently presented for review and are waived[]”)

(citing Doorbal v. State, 983 So. 2d 464, 482–83 (Fla. 2008); Shere v. State, 742 So. 2d 215, 217

n.6 (Fla. 1999)); see also McClarty v. Sec'y, Dep't of Corr., 15-15669-E, 2016 WL 10703187, at

*10 (11th Cir. Sept. 7, 2016) (citing Ward).

Any further attempt to exhaust state remedies would be barred as a second appeal is

unavailable and any further claim in a Rule 3.850 motion would be dismissed as successive. See

Fla. R. Crim. P. 3.850(b), (h), (k); Fla. R. App. P. 9.141. Therefore, Petitioner’s claims are

procedurally defaulted and serve no basis for federal habeas relief. Snowden v. Singletary, 135

2 If an appellant does not file a brief when appealing a summarily denied Rule 3.850 motion (which is not the case

here), the appellate court is required to investigate all possible means of relief. See Fla. R. App. P. 9.141(b)(2); Watson

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

Further, the Court notes that the Eleventh Circuit has previously held in two unpublished decisions that when a Florida

defendant does not receive an evidentiary hearing under a Rule 3.850 motion, he satisfies the exhaustion requirement

as to all claims raised in his Rule 3.850 motion, even if his appellate brief fails to address each issue. Darity v. Sec'y,

Dep't of Corr., 244 F. App'x. 982, 984 (11th Cir. 2007); Cortes v. Gladish, 216 F. App'x 897, 899–900 (11th Cir.

2007). However, the Florida case relied on in those decisions, Webb v. State, 757 So. 2d 608 (Fla. 5th DCA 2000),

ceased to be the decisional law and is receded from by Ward. 19 So. 3d at 1061.

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F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Harris

v. Reed, 489 U.S. 255, 269 (1989) (“[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.”).

Further, Petitioner makes no argument as to why his procedural default should be excused

under the procedural default exceptions. See DEs 1; 15; 23. Also, after a review of the record, the

Court finds that neither exception is applicable. To illustrate, the record does not reveal an

objective cause for Petitioner’s failure to raise these claims on appeal and resulting prejudice, nor

would the failure to consider these claims result in a fundamental miscarriage of justice. See Marek

v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995) (citations omitted) (“[Petitioner] may overcome

his procedural default by showing cause for the procedural default and resulting prejudice. Cause

requires a showing of some objective factor external to the defense … which prevented counsel

from constructing or raising the claim.”); see also House v. Bell, 547 U.S. 518 536–38 (2006)

(noting how the fundamental miscarriage of justice exception arises in only extraordinary cases).

Thus, the Court is barred from reviewing these claims and the Undersigned RESPECTFULLY

RECOMMENDS that the District Judge DENY Grounds Four through Eight.3

3 Alternatively, the Court respectfully recommends that the District Judge deny Grounds Four through Eight on the

merits.

Ground Four (whether counsel was ineffective for not retaining an independent crime scene investigator) is meritless.

Petitioner’s speculative and conclusory remarks are insufficient to establish counsel was ineffective (especially given

the state court’s finding of defense counsel’s adequate cross-examination of the State’s expert) or that the outcome of

the trial would have been different given the evidence presented at trial as stated above. See DE 20-3 at 235; see also

Chaney v. Sec'y, Florida Dept. of Corr., 447 Fed. Appx. 68, 70 (11th Cir. 2011) (citations omitted) (“We have held

that the mere fact a defendant can find [an] expert who will testify favorably for him does not demonstrate that counsel

was ineffective for failing to produce that expert at trial … This is especially true when reviewing a state court's

finding that counsel was not ineffective for failing to call such an expert to testify.”).

Ground Five (whether counsel misadvised Petitioner by advising Petitioner not to testify and interfered with

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IV. CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 2254 Rule 11(a) provides that “[t]he district

court must issue or deny a certificate of appealability when it enters a final order adverse to the

applicant,” and if a certificate is issued “the court must state the specific issue or issues that satisfy

the showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed,

even if the court issues a certificate of appealability. Rule 11(b) to the Rules Governing § 2254

Proceedings.

After a careful review of the record, the Court finds that Petitioner is not entitled to a

certificate of appealability. “A certificate of appealability may [be] issued[d] . . . only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To merit a certificate of appealability, Petitioner must show that reasonable jurists

Petitioner’s Fifth Amendment right) is also meritless. Petitioner voluntarily waived his right to testify. [DE 21-1 at

440–41]. Even assuming this was involuntary, Petitioner fails to show prejudice given the contradictory nature of his

proposed testimony and his trial strategy and the evidence presented in the case.

Ground Six (whether counsel was ineffective by failing to object to the attempted manslaughter by act instruction) is

also baseless. The state court did not unreasonably apply Strickland when examining defense counsel’s failure to

object to a standard jury instruction. See DE 20-3 at 236–37; see also Conrad v. Sec'y, Florida Dep't of Corr., 663

Fed. Appx. 746, 753 (11th Cir. 2016) (“Florida precedent indicates that trial counsel’s failure to object to standard

jury instructions that had not been invalidated by the Florida Supreme Court do not render counsel’s performance

deficient. Therefore, [petitioner] has not satisfied Strickland’s performance prong.”).

Ground Seven (whether counsel was ineffective for failing to move for a mistrial during the prosecutor’s closing) is

also unavailing. As illustrated in Ground Two and explained by the state court, the prosecutor’s comments did not rise

to the level to warrant a mistrial. [DE 20-3 at 238–39]; Floyd v. State, 913 So. 2d 564, 576 (Fla. 2005) (“A motion for

mistrial should be granted only when the error is deemed so prejudicial that it vitiates the entire trial, depriving the

defendant of a fair proceeding.”). Because a mistrial would not have been granted, no prejudice resulted from failing

to move for one. Thus, the state court’s denial of this ground is not contrary or an unreasonable application of

Strickland.

Lastly, the burden for Ground Eight (whether counsel was ineffective for failing to object at sentencing) is not met.

As explained in the merits of Ground One, the trial court did not consider improper factors at sentencing. Thus, no

prejudice resulted.

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would find debatable both (1) the merits of the underlying claims and (2) the procedural issues she

seeks to raise. Slack v. McDaniel, 529 U.S. 473, 478 (2000); see also Eagle v. Linahan, 279 F.3d

926, 935 (11th Cir. 2001). Because the claims raised in the Petition are without merit, Petitioner

cannot satisfy the Slack test. Upon consideration of the record, the District Judge should deny a

certificate of appealability.

V. RECOMMENDATION TO THE DISTRICT JUDGE

A very careful review of the entire record establishes that Petitioner’s claims are meritless

and due to be denied for the reasons stated above. No evidentiary hearing is necessary or required.

The Petition fails to establish any grounds for relief. Accordingly, the undersigned United States

Magistrate Judge recommends that the United States District Judge DENY Petitioner’s Petition

[DE 1] and DENY a Certificate of Appealability.

NOTICE OF RIGHT TO OBJECT

The parties shall have fourteen (14) days from the date of being served with a copy of this

Report and Recommendation within which to file written objections, if any, with United States

District Judge Donald M. Middlebrooks. Failure to file objections timely shall bar the parties from

a de novo determination by the District Judge of an issue covered in the Report and

Recommendation and shall bar the parties from attacking on appeal unobjected-to factual and legal

conclusions contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v.

Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir.

R. 3-1 (2016).

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RESPECTFULLY SUBMITTED in Chambers at West Palm Beach in the Southern

District of Florida, this 12th day of November 2024.

WILLIAM THEWMAN

United States Magistrate Judge

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