Kramer v. Secretary, Department of Corrections (Clay County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ROBERT W. KRAMER,

Petitioner,

v. Case No. 3:21-cv-1016-HES-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

ORDER

I. Status

Petitioner Robert W. Kramer, an inmate of the Florida penal system,

initiated this action through counsel on October 11, 2021, by filing a Petition

for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). In the

Petition, Kramer challenges a 2015 state court (Clay County, Florida)

judgment of conviction for possession of child pornography. He raises four

grounds for relief. See Petition at 4-14. Respondents submitted a

memorandum in opposition to the Petition. See Response to Petition for Writ

of Habeas Corpus (Response; Doc. 8). They also submitted exhibits. See Docs.

8-1 through 8-22. Kramer filed a brief in reply. See Petitioner’s Reply to

Response to Petition (Reply; Doc. 10). This action is ripe for review.

II. Relevant Procedural History

On October 10, 2014, the State of Florida charged Kramer by third

amended information with fourteen counts of possession of child pornography.

Doc. 8-3 at 85-87. Kramer proceeded to a trial, and on December 10, 2014, a

jury found him guilty of all charges. Id. at 158-71. On February 3, 2015, the

trial court sentenced Kramer to consecutive five-year terms of imprisonment

on all counts. Doc. 8-4 at 4-11.

On direct appeal, with the benefit of counsel, Kramer filed an initial

brief, arguing the trial court erred when it denied the defense’s motion to

suppress and motions for judgment of acquittal. Doc. 8-8 at 2-29. The State

filed an answer brief, Doc. 8-9 at 2-37, and Kramer replied, Doc. 8-10 at

2-13. The First DCA per curiam affirmed Kramer’s conviction and sentence

without a written opinion on April 19, 2017, Doc. 8-11 at 2, and issued the

mandate on May 5, 2017, id. at 3.

On June 14, 2018, Kramer filed through counsel a state petition for writ

of habeas corpus raising one ground of ineffective assistance of appellate

counsel. Doc. 8-12 at 2-11. Kramer subsequently filed an amended state

petition. Doc. 8-13 at 2-12. The State answered, Doc. 8-16 at 2-12, and Kramer

replied, Doc. 8-17 at 2-6. The First DCA denied the petition on the merits on

August 1, 2019. Doc. 8-18 at 2.

On September 4, 2019, Kramer filed through counsel a motion to correct

illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Doc.

8-19 at 5—9. He argued his sentence was illegal because: (1) it was based upon

unsubstantiated allegations of misconduct and (2) it amounted to a de facto life

sentence. Id. The circuit court denied the Rule 3.800(a) motion. Id. at 10-11.

On September 22, 2021, the First DCA affirmed the circuit court’s denial in a

written opinion, Doc. 8-22 at 6-9, and on October 13, 2021, it issued the

mandate, id. at 10.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.

The pertinent facts of this case are fully developed in the record before the

Court. Because the Court can “adequately assess [Kramer’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

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

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

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

2016), abrogation recognized on other grounds by Smith v. Comm’r, Ala. Dep’t

of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023). “The purpose of AEDPA is to

ensure that federal habeas relief functions as a guard against extreme

malfunctions in the state criminal justice systems, and not as a means of error

correction.” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)). As such,

federal habeas review of final state court decisions is “greatly circumscribed

and highly deferential.” Id. (internal quotation marks omitted) (quoting Hill v.

Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)).

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

decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s

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

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

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 584 U.S. 122, 125 (2018). The presumption may be rebutted

by showing that the higher state court’s adjudication most likely relied on

different grounds than the lower state court’s reasoned decision, such as

persuasive alternative grounds that were briefed or argued to the higher court

or obvious in the record it reviewed. Id. at 125—26, 132.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “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) “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); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the hmited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

‘if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

{the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

_ the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous § factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 185 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “a _ state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.” Titlow, 571 U.S. at --

-, 13848. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,

301, 1380S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1328, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

examination of the state-court decision at the time it was made’).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Titlow, 571 U.S.

at 19. “Federal courts may grant habeas relief only when a state court

blundered in a manner so ‘well understood and comprehended in existing law’

and ‘was so lacking in justification’ that ‘there is no possibility fairminded

jurists could disagree.” Tharpe, 834 F.3d at 1338 (quoting Richter, 562 U.S. at

102-03). This standard is “meant to be” a “difficult” one to meet. Richter, 562

U.S. at 102. Thus, to the extent that the petitioner’s claims were adjudicated

on the merits in the state courts, they must be evaluated under 28 U.S.C. §

2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a

§ 2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present|]” every issue raised in his federal petition to the state’s highest court,

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

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

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

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

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

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

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

““opportunity to pass upon and correct” alleged

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

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 1380 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

US. 270, 275, 92S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

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

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

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

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,['] supra, at 747—

748, 111 S. Ct. 2546; Sykes,[?] supra, at 84-85, 97 S.

1 Coleman v. Thompson, 501 U.S. 722 (1991).

2 Wainwright v. Sykes, 433 U.S. 72 (1977).

Ct. 2497. A state court’s invocation of a procedural

rule to deny a prisoner’s claims precludes federal

review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate

to support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. --, --, 1818. Ct. 1120, 1127—

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

US. --, --, 180 S. Ct. 612, 617-618, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally defaulted

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

procedurally defaulted, a federal court may still consider the claim if a state

habeas petitioner can show either (1) cause for and actual prejudice from the

default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (llth Cir. 1992)

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639). [3]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

3 Murray v. Carrier, 477 U.S. 478 (1986).

10

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

A477 U.S. at 494, 106 S. Ct. 2639).

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

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

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

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

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

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “[t]o be

11

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

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

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

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

USS. at 324.

C. Ineffective Assistance of Trial and Appellate Counsel

“The Sixth Amendment guarantees criminal defendants the effective

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

performance falls below an objective standard of reasonableness and thereby

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

curiam) (citing Wiggins v. Smith, 589 U.S. 510, 521 (2003), and Strickland v.

“Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a _ person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 1048S. Ct. 2052.

12

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 1048. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

Claims of ineffective assistance of appellate counsel are governed by the

same standards applied to trial counsel under Strickland. See Tuomi v. Sec’y,

13

Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020); Philmore v. McNeil, 575

F.3d 1251, 1264 (11th Cir. 2009). The Eleventh Circuit has instructed:

In assessing an appellate attorney’s performance, we

are mindful that “the Sixth Amendment does not

require appellate advocates to raise every non-

frivolous issue.” Id. at 1130-31.[4] Rather, an effective

attorney will weed out weaker arguments, even

though they may have merit. See id. at 1131. In order

to establish prejudice, we must first review the merits

of the omitted claim. See id. at 1132. Counsel's

performance will be deemed prejudicial if we find that

“the neglected claim would have a _ reasonable

probability of success on appeal.” Id.

Philmore, 575 F.3d at 1264. Thus, appellate counsel’s performance is

prejudicial if the omitted claim would have a reasonable probability of success

on appeal. Id. at 1265.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, - U.S. at -, 131 S. Ct.

at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question is not whether a federal court

believes the state court’s determination under the

4 Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991).

14

Strickland standard was incorrect but whether that

determination was unreasonable - a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123, 1295S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel _ satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, - U.S. at -, 1381S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference—this one to a state court’s decision—when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“(sJurmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

In Ground One, Kramer raises claims of trial court error, ineffective

assistance of trial counsel, and ineffective assistance of appellate counsel. See

Petition at 4-8, Memorandum of Law at 5-12. The Court will address each of

Kramer’s claims in turn.

15

1. Trial Court Error

First, Kramer asserts that the trial court erred when it denied his motion

to suppress because “law enforcement executed a search warrant [of Kramer's

computer] that lacked probable cause.” Petition at 4. He alleges that law

enforcement omitted material information from the search warrant affidavit

about the motives of the informant, Kramer's ex-girlfriend; “prior

unauthorized and warrantless searches of the computer by [law enforcement]”;

and “that the basis for [the informant’s] knowledge came about by illegal

activity.” Memorandum of Law at 9. Kramer raised a substantially similar

claim on direct appeal, Doc. 8-8 at 18-25, and the First DCA per curiam

affirmed Kramer’s conviction, Doc. 8-11 at 2.

Respondents contend that Kramer’s Fourth Amendment claim is barred

because he had a full and fair opportunity to litigate it in state court. See

Response at 15—18. The law is well settled that a federal court cannot entertain

a claim of a violation of a habeas petitioner’s Fourth Amendment rights if the

petitioner had an opportunity for full and fair consideration of his claim in the

state courts. Stone v. Powell, 428 U.S. 465, 494 (1976); Bradley v. Nagle, 212

F.3d 559, 564 (11th Cir. 2000). “[FJull and fair consideration requires

consideration by the fact-finding court, and at least the availability of

16

meaningful appellate review by higher state court.” Mincev v. Head, 206 F.3d

1106, 1126 (11th Cir. 2000) (citation omitted). The state court’s consideration

of Kramer’s claim triggers the Stone bar, precluding federal review of his

Fourth Amendment claim, because the state court provided Kramer with

processes for full and adequate consideration of this ground.

A review of the procedural history of this matter establishes Kramer had

ample opportunity for “full and fair consideration” of his claims. Kramer filed

a motion to suppress, arguing in relevant part that law enforcement lacked

probable cause for a search warrant. Doc. 8-2 at 56-62. The trial court held an

evidentiary hearing, Doc. 8-5 at 14-96, and ultimately denied the motion to

suppress, Doc. 8-2 at 78-82. Kramer filed a motion for reconsideration. Id. at

121-24. The trial court held another hearing, Doc. 8-5 at 97-137, and it denied

his request for reconsideration, Doc. 8-3 at 84. Kramer then raised the issue in

his counseled brief on appeal, Doc. 8-8 at 18—25, and the appellate court issued

a ruling, Doc. 8-11 at 2. Any allegation of state court error in denying his

motion to suppress does not suffice to avoid the Stone bar given the record here.

See Swicegood v. Alabama, 577 F.2d 1322, 1324-25 (5th Cir. 1978)5 (holding

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),

the Eleventh Circuit adopted as binding precedent all the decisions of the former

Fifth Circuit handed down prior to the close of business on September 30, 1981.

17

that the Stone bar applies despite an error by the state court in deciding the

merits of a Fourth Amendment claim). Accordingly, under Stone, relief on the

trial court error claim in Ground One is due to be denied.

2. Ineffective Assistance of Trial Counsel

Next, Kramer alleges counsel was ineffective when he failed to

adequately argue the motion to suppress before the trial court. See Petition at

4, According to Kramer, counsel should have argued that the search warrant

affidavit contained material omission regarding the reliability of the informant

that, if included, would not establish probable cause. See id. at 8 (“The

arguments made on appeal should have been made by trial counsel at the time

the motion was filed and ruled on.”); see also Doc. 8-8 at 18-25 (initial brief on

appeal).

Kramer did not present this ineffectiveness claim to the state court in a

Rule 3.850 motion or otherwise. Indeed, Kramer failed to initiate any Rule

3.850 proceedings in the state court. Therefore, the state court never had an

opportunity to consider this issue, rendering the claim unexhausted. See

Boerckel, 526 U.S. at 845 (“[S]tate prisoners must give the state courts one full

opportunity to resolve any constitutional issues by invoking one complete

18

round of the State’s established appellate review process.”). Because any future

attempt to exhaust this claim would be futile, it is procedurally defaulted.

Nevertheless, Kramer relies on Martinez in an attempt to excuse this

procedural default. See Petition at 8. He explains that he retained

postconviction counsel, but “counsel believed there were no[] issues that were

available to argue in [a Rule 3.850] motion.” Memorandum of Law at 23.

Respondents contend that Kramer cannot rely on Martinez to overcome the

procedural bar here because he never filed a Rule 3.850 motion with the state

court. See Response at 18-28. According to Respondents, Martinez is

exceedingly narrow and applies only where a petitioner has filed with the state

court a motion seeking collateral review, which did not occur in this case. See

id.

In Martinez, the United States Supreme Court recognized a narrow

exception to the rule set forth in Coleman, 501 US. at

753-54, and found that “[iJnadeqaute assistance of counsel at initial-review

collateral proceedings may establish cause for a prisoner’s procedural default

of a claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9.

Specifically, the Martinez Court recognized two situations in which a prisoner

may establish cause:

19

The first is where the state courts did not appoint

counsel in the initial-review collateral proceeding for a

claim of ineffective assistance at trial. The second is

where appointed counsel in the _initial-review

collateral proceeding, where the claim should have

been raised, was ineffective under the standards of

Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).

566 U.S. at 14. The Supreme Court reasoned that allowing a federal court to

hear a claim of ineffective assistance of trial counsel when postconviction

counsel's errors caused a procedural default “acknowledges, as an equitable

matter, that the initial-review collateral proceeding if undertaken without

counsel or with ineffective counsel, may not have been sufficient to ensure that

proper consideration was given to a substantial claim.” Id. (emphasis added).

Upon review of the language set forth in Martinez, the Court is

persuaded by Respondents’ argument and finds that Petitioner cannot rely on

Martinez to excuse the procedural default of this claim. Indeed, Kramer failed

to undertake any Rule 3.850 proceeding in state court. The Martinez analysis

is inapplicable in such a case. See Jones v. Pa. Bd. of Prob. & Parole, 492 F.

App’x 242, 247 (3d Cir. 2012) (“[W]e conclude that the Martinez analysis is

inapplicable where the criminal defendant did not initiate any state collateral

review proceeding whatsoever. ... Were it otherwise, the Martinez rule could

potentially apply to any defendant who failed to petition for state collateral

20

review.” (internal citation omitted)), cert. denied, 568 U.S. 1167 (2013); see also

Johns v. Alabama, No. 2:19-CV-707-ECM-SMD, 2022 WL 1491671, at *4 n.6

(M.D. Ala. May 11, 2022) (noting that Martinez is inapplicable where a

criminal defendant initiates no state collateral-review proceeding whatsoever),

report and recommendation adopted, 2022 WL 2134984 (M.D. Ala. June 14,

2022); Cobb v. Carter, No. 2:17-CV-655-ECM-SMD, 2020 WL 3980231, at *3

(M.D. Ala. June 12, 2020) (same), report and recommendation adopted sub

nom. Jashawn v. Carter, 2020 WL 3971915 (M.D. Ala. July 14, 2020).

Moreover, this is not a situation where postconviction counsel abandoned

Kramer. See Maples v. Thomas, 565 U.S. 266, 289 (2012) (determining

petitioner showed cause to excuse his procedural default where counsel

abandoned him). “Abandonment denotes renunciation or withdrawal, or a

rejection or desertion of one’s responsibilities, a walking away from a

relationship.” Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1234 (11th Cir. 2017).

Here, Kramer’s postconviction counsel filed and litigated in the state appellate

court a petition for writ of habeas corpus alleging claims of ineffective

assistance of appellate counsel. See Reply at 4. While postconviction counsel

determined Kramer did not have any meritorious claims to present in a Rule

3.850 motion, Kramer makes no allegations that counsel withdrew from

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representing Kramer for purposes of filing a Rule 3.850 motion, ceased contact

with Kramer, or failed to take any action for which Kramer requested he take.

And to the extent Kramer disagreed with postconviction counsel’s decision to

not file a Rule 3.850 motion on behalf of Kramer, that decision did not affect

Kramer’s ability to file a pro se Rule 3.850 motion or retain another attorney

to assess the frivolity of filing a Rule 3.850 motion with the state court.

Therefore, Kramer does not demonstrate cause to overcome the procedural

default.6 Consequently, the claim cannot be considered by this Court and is

due to be dismissed.

3. Ineffective Assistance of Appellate Counsel

Lastly, Kramer appears to argue that appellate counsel was ineffective

when he “failed to fully raise and argue” the trial court error issue on appeal.

Memorandum of Law at 12. Kramer did not present this claim of ineffective

assistance of appellate counsel to the state court. Therefore, the state court

never had an opportunity to consider this issue, rendering the claim

unexhausted. See Boerckel, 526 U.S. at 845. Because any future attempt to

exhaust this claim would be futile, it is procedurally defaulted.

6 Kramer also makes no allegation that the Court’s failure to consider this

claim will result in a fundamental miscarriage of justice. See generally Petition,

Memorandum of Law, Reply.

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As cause to excuse his procedural default, Kramer seemingly relies on

Martinez. See Petition at 8. However, the rule in Martinez does not extend to

claims of ineffective assistance of appellate counsel. See Davila v. Davis, 582

U.S. 521, 529 (2017). As such, the claim is unexhausted and procedurally

defaulted. Kramer has not presented any other evidence to demonstrate cause

or prejudice, much less the existence of the fundamental miscarriage of justice

exception to the procedural bar. Accordingly, this claim is due to be dismissed.

B. Ground Two

As Ground Two, Kramer argues appellate counsel was ineffective for

failing to argue on direct appeal that the trial court erred when it denied the

defense’s motion to dismiss. See Petition at 9. The record reflects that before

trial, counsel moved to dismiss the information based on the expiration of the

three-year statute of limitations. Doc. 8-14 at 17. Counsel argued that the

offenses allegedly occurred on September 13, 2008; however, law enforcement

arrested Kramer more than three years later on July 17, 2012. Id. Therefore,

the trial court did not have jurisdiction to hear Kramer’s case. Id. at 18.

Subsequently, on October 10, 2014, the State filed a third amended

information, which provided that the offenses occurred between September 13,

2008, and June 15, 2010. Doc. 8-3 at 85-87. On November 5, 2014, the trial

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court denied the defense’s motion, determining “there are material facts in

dispute that bar the requested relief.” Doc. 8-3 at 103. Specifically, the trial

court noted that “Defendant’s motion implicitly raises the question of when

possession ended [but] [s]uch information is not in the record before the Court.”

Id. at 102.

Kramer raised a similar ineffectiveness claim in his state petition for

writ of habeas corpus, Doc. 8-13 at 2-12, and the First DCA denied Kramer's

petition on the merits, Doc. 8-18 at 2. As there is a qualifying state court

decision, the Court will address the claim in accordance with the deferential

standard for federal court review of state court adjudications. After a review of

the record and the applicable law, the Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceedings. Therefore, Kramer is not

entitled to federal habeas relief on the basis of this claim.

C. Grounds Three and Four

In Ground Three, Kramer alleges counsel was ineffective when he failed

to investigate and present evidence that supported the defense’s theory of

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innocence—‘“that [Kramer] was not the person who accessed the child

pornography, and that someone else had placed the images on the computer.”

Petition at 11. Specifically, he asserts that counsel knew of two individuals who

had also accessed the laptop containing child pornography but failed to call

them as witnesses at trial. Id. at 12. Kramer also contends that counsel failed

to retain an expert witness who “would have testified the actual forensic

timeline [of when Kramer accessed the files] ... was different than the State’s

theory.” Id. As Ground Four, Kramer argues counsel was ineffective when he

failed to impeach two witnesses at trial: Jennifer Cabrera (Kramer’s ex-

girlfriend) and the State’s forensic expert. Id. at 13.

Kramer did not present these ineffectiveness claims to the state court in

a Rule 3.850 motion or otherwise. Indeed, Kramer failed to initiate any Rule

3.850 proceedings in the state court. Therefore, the state court never had an

opportunity to consider this issue, rendering the claim unexhausted. See

Boerckel, 526 U.S. at 845. Because any future attempt to exhaust this claim

would be futile, it is procedurally defaulted.

Nevertheless, Kramer again relies on Martinez in an attempt to excuse

this procedural default because he retained postconviction counsel, but

“counsel believed there were no[] issues that were available to argue in [a Rule

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3.850] motion.” Memorandum of Law at 23; see also Petition at 12, 14. For the

reasons detailed in Ground One, supra, the Court finds that Martinez does not

excuse the procedural default of this claim because Kramer failed to undertake

any Rule 3.850 proceeding. See Jones, 492 F. App’x at 247. As such, the claim

is unexhausted and procedurally defaulted. Kramer has not presented any

other evidence to demonstrate cause or prejudice, much less the existence of

the fundamental miscarriage of justice exception to the procedural bar.

Accordingly, the claims in Grounds Three and Four are due to be dismissed as

unexhausted.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Kramer seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. The

Court should issue a certificate of appealability only if the petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, Kramer “must demonstrate that

reasonable jurists would find the district court's assessment of the

constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274,

282 (2004) (quoting Slack v. McDaniel, 529 U.S. 478, 484 (2000)), or that “the

issues presented were ‘adequate to deserve encouragement to proceed

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further,” Miller-El] v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

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

WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.

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3. If Kramer appeals the denial of the Petition, the Court denies a

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

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

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

4. The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this VW aay of

January, 2025.

. H E. | SINGER

ited Statés District Judge

Jax-9 1/23

c: Counsel of record

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