Shootes v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JACQUAN VONTEL SHOOTES,

Petitioner,

v. Case No. 3:22-cv-303-TJC-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this case by

filing a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. Doc.

1. He is proceeding on a Second Amended Petition, Doc. 17, challenging a state

court (Duval County, Florida) judgment of conviction for two counts of

aggravated assault (lesser included offenses) and one count of carrying a

concealed firearm. Petitioner is serving a forty-year term of incarceration.

Respondents filed a Response. See Doc. 20; Resp.1 Petitioner replied. See Doc.

1 Attached to the Response are several exhibits. See Docs. 20-1 to 20-31. The

Court cites the exhibits as “Resp. Ex.”

21. This case is ripe for review.2

II. Governing Legal Principles

A. Standard of Review

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

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

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

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘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)).

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

decision, if any, that adjudicated the petitioner’s claims on the merits. See

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

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

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

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

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

1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060

(11th Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court

must consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

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

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

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

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

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

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

States,” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

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

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254

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

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

2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

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

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

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

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

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

“‘opportunity to pass upon and correct’ alleged

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

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

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

U.S. 270, 275, 92 S. 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,[3] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[4] supra, at 84–85, 97 S. 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. --, --, 131 S. Ct. 1120, 1127–1128, 179 L.Ed.2d 62

(2011); Beard v. Kindler, 558 U.S. --, --, 130 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). For a petitioner to establish cause and prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

raising the claim and which cannot be fairly

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

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

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

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

477 U.S. at 488, 106 S. Ct. 2639).[5] Under the prejudice

prong, [a petitioner] must show that “the errors at trial

actually and substantially disadvantaged his defense

so that he was denied fundamental fairness.” Id. at

1261 (quoting Carrier, 477 U.S. at 494, 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.

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

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

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

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

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

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

U.S. at 324.

C. Ineffective Assistance of Trial and Appellate Counsel

“The Sixth Amendment guarantees criminal defendants effective

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

performance falls below an objective standard of reasonableness and thereby

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

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

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

show: (1) counsel’s performance was outside the wide range of reasonable,

professional assistance; and (2) counsel’s deficient performance prejudiced the

challenger in that there is a reasonable probability that the outcome of the

proceeding would have been different absent counsel’s deficient performance.

Strickland, 466 U.S. at 687.

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

assistance of appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287

(11th Cir. 2016). When considering deficient performance by appellate counsel,

a court must presume counsel’s performance was

“within the wide range of reasonable professional

assistance.” Id. at 689, 104 S. Ct. 2052. Appellate

counsel has no duty to raise every non-frivolous issue

and may reasonably weed out weaker (albeit

meritorious) arguments. See Philmore v. McNeil, 575

F.3d 1251, 1264 (11th Cir. 2009). “Generally, only

when ignored issues are clearly stronger than those

presented, will the presumption of effective assistance

of counsel be overcome.” Smith v. Robbins, 528 U.S.

259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644,

646 (7th Cir.1986)); see also Burger v. Kemp, 483 U.S.

776, 784 (1987) (finding no ineffective assistance of

counsel when the failure to raise a particular issue had

“a sound strategic basis”).

Id.; see also Owen v. Sec’y, Dep’t of Corr., 568 F.3d 894, 915 (11th Cir. 2009)

(recognizing that “failing to raise or adequately pursue [meritless issues on

appeal] cannot constitute ineffective assistance of counsel”).

To satisfy the prejudice prong of an ineffective assistance of appellate

counsel claim, a petitioner must show a reasonable probability that “but for the

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

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

v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the

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

Also,

[a] reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id., at 694, 104

S. 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. As such, “[a]ppellate counsel might fail to identify a

mediocre or obscure basis for reversal without being ineffective under

Strickland.” Overstreet, 811 F.3d at 1287 (citation omitted).

For both claims of ineffective assistance of trial counsel and appellate

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

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

2010). Since both prongs of the two-part Strickland test must be satisfied to

show a Sixth Amendment violation, “a court need not address the performance

prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.

(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in

Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, which we expect will often be so, that course should

be followed.” 466 U.S. at 697.

Further, “[t]he question is not whether a federal court believes the state

court’s determination under the Strickland standard was incorrect but whether

that determination was unreasonable - a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If

there is “any reasonable argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not disturb a state-court

decision denying the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s

representation was ‘within the wide range of reasonable professional

assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th

Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is

combined with § 2254(d), the result is double deference to the state court ruling

on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans

v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc)

(Jordan, J., concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004).

III. Relevant Procedural History and Evidence Presented at Trial

The following procedural and factual history is taken from Petitioner’s

initial brief filed on direct appeal:

[Petitioner] was charged by an Amended

Information with attempted first-degree murder in

Count I, attempted second-degree murder in Count II,

and carrying a concealed firearm in Count III. The jury

returned verdicts of guilty to the lesser included offense

of aggravated assault in Count I, the lesser included

offense of aggravated assault in Count II, and guilty as

charged in the Information in Count III. On direct

appeal, this Court reversed and remanded for a new

trial. Shootes v. State, 20 So. 3d 434 (Fla. 1st DCA

2009).[6] The case proceeded to a second trial. A

mistrial was declared because the jurors were at an

absolute and total impasse in reaching a verdict.

The case proceeded to a jury trial for the third

time.

. . . .

Detective Hughey, of the Jacksonville Sheriff’s

Office, testified that on February 15, 2007, he was

preparing to execute a search warrant on 111 West

42nd Street. The target of the investigation was Alonzo

Wilson. The plan was to lure Wilson out of his house by

having a confidential informant contact him and

advising they broke down on 20th and Main and have

Wilson leave his residence and drive to 20th and Main.

After Wilson exited 111 West 42nd Street, he was

detained by police. The two ounces of cocaine that were

ordered were found. In Wilson’s vehicle, an empty gun

holster was located in the center console. Wilson said it

was his cousin’s [(Petitioner’s)] car. According to

Hughey, Wilson said that if the firearm was not in the

vehicle then it would be somewhere near his cousin or

back at the residence. Wilson also said he had a large

sum of weapons at the residence. Hughey testified that

he and Sgt. Demps then devised a plan to lure

[Petitioner] out. They had Wilson call [Petitioner] and

tell him to come down to 42[nd] and Pearl to assist him

as if his car had broken down. Wilson called

[Petitioner]. Hughey was not present when [Petitioner]

exited the house. [Hughey] later arrived at 111 West

42[nd] Street and was advised of a shooting. He did not

witness the shooting.

On cross-examination, Hughey testified it was

around dusk or closer to 6:30 p.m. when Wilson

6 The First District Court of Appeal reversed Petitioner’s judgment and

conviction and remanded for a second trial because it found Petitioner was unduly

prejudiced by “the conspicuous crowd of” law enforcement personnel in the courtroom

on the last day of trial. See Shootes, 20 So. 3d at 440.

contacted [Petitioner] to leave his residence. According

to Hughey, it is kind of dark at dusk. [Petitioner] was

in handcuffs by the time he arrived at the scene. He

remembers [Petitioner] apologizing. The officers were

using unmarked cars with tinted windows.

On redirect examination, Hughey testified that

the officers were wearing tactical gear, all black, with a

JSO badge, and “POLICE” written on [the] front and

back of their shirts. They also were wearing gun belts.

On re-cross-examination, Hughey testified that

this was a neighborhood where [car] jacking[s] may

happen.

Sgt. Demps . . . testified that on February 15,

2007, he was involved in the execution of a search

warrant on 111 West 42nd Street. . . . The plan was to

lure the target of the investigation, Alonzo Wilson, out

of the house. They would detain him and then go back

and serve the search warrant. Drugs were recovered

from Wilson’s person when he was detained and a

holster was located in the back seat of his vehicle.

Wilson said his cousin was at the house. Wilson also

said that the pistol that belonged to the holster was at

the house. There was artillery inside the house as well.

Demps told Wilson to pretend as if he had a car wreck

down the street and get [Petitioner] out of the house.

Demps testified he was riding with [Detective]

Hollins. [Officers] Thomas and Hart were in another

vehicle. The vehicle [Demps] was in was a burgundy

Impala. It was unmarked with no police insignia.

Hollins was the driver. They were all wearing tactical

vests with badges on them. Thomas and Hart were in a

Bonneville. Demps received a call on the Nextel from

Hughey who said that [Petitioner] was coming out. He

was a black male with a hoodie jacket and dark-colored

pants. An in-court identification was made of

[Petitioner]. Demps pulled up in front of [Petitioner].

He got out with a shotgun and walked towards

[Petitioner]. He made eye contact with [Petitioner] then

thought he heard Detective Hart yell “police” or

something else out the window but he could not

remember. According to Demps, [Petitioner] reached

under his shirt and pulled out a pistol. [Petitioner] fired

his gun 3-4 times before he raised his weapon. Demps

shot at [Petitioner] five times. Demps then testified

that [Petitioner] shot six or seven times. Demps fired

his weapon eleven times. After [Petitioner] fell to the

ground, he was taken into custody. Rescue was called.

As [Petitioner] was being handcuffed and waiting for

Rescue, he apologized and said he didn’t think they

were police. Demps didn’t say anything to [Petitioner]

before he reached for his weapon.

. . . .

Detective Hollins . . . testified that on February

15, 2007, he was involved with executing a search

warrant. Hollins was in a burgundy Impala. Demps

was in the passenger seat. Hart and Thomas were in

the Pontiac. Thomas was the driver. Hollins was

wearing his tactical gear, he had a police vest that said

“POLICE” on it. He also was wearing a police badge.

After [Petitioner] exited the house, Hollins drove in

front of him. Thomas’ car drove into place behind

[Petitioner]. [Hollins and Demps] both exited the car.

Hollins could see [Petitioner]. [Petitioner] looked up at

Sgt. Demps and stopped. [Petitioner] made eye contact.

According to Hollins, he heard Hart say “police” from

the other vehicle as he was getting out. [Petitioner]

pulled his shirt up, pulled out a firearm, and fired it at

Hart’s vehicle. Hollins pulled his firearm and fired

back. [Petitioner] ran back towards the house and fell

to the ground. He was taken into custody. Hollins

testified that he heard [Petitioner] say he thought they

were “jack boys.”

. . . .

Lavall Thomas, of the Jacksonville Sheriff’s

Office, testified he was involved in the take-down on

February 15, 2007. Thomas was driving the Pontiac

Bonneville. Hollins and Demps were in a burgundy

Impala. Thomas made an in-court identification of

[Petitioner] as the person who exited the residence.

According to Thomas, he pulled up behind [Petitioner]

and Hart was attempting to exit the vehicle. Demps

and Hollins were at the rear of the vehicle. Thomas

testified that one could see “POLICE” across Demps’

jacket. As Hart was exiting the vehicle, he was yelling

“police, get to the ground.” [Petitioner] pulled up his

shirt and took a shot at the vehicle. Hart got back in

the vehicle and fired back out the window. [Petitioner]

ran towards the residence. As he exited the vehicle,

[Petitioner] was facing down. Thomas testified that he

heard [Petitioner] say “I didn’t know you were police”

and that he “didn’t want to shoot at nobody and didn’t

want to go to jail.”

Detective Hart . . . testified that there was a plan

to execute a search warrant on 111 West 42nd Street

on February 15, 2007. His role was to play a part in the

apprehension of [Petitioner]. Hart was wearing black

pants, a black shirt, and a black ballistics vest. It had

“POLICE” on it. Hart was the passenger of the car that

Thomas was driving. It was an unmarked brown

Pontiac Bonneville. Demps and Hollins were in the

Chevy Impala. Hart made an in-court identification of

[Petitioner] as the person who exited the residence. The

plan was to have Demps’ car pull ahead of [Petitioner]

and to have his car pull in behind [Petitioner]. He

would then get out and detain [Petitioner]. According

to Hart, the unmarked vehicle had tinted windows but

the window was down so that [Petitioner] could see

him. Hart testified that he opened the passenger door

and yelled “police.” [Petitioner] started shooting at him.

[Petitioner] was walking towards the vehicle and the

next thing he knew was that [Petitioner] fired a shot at

him. Hart retrieved his AR-15 rifle and began shooting

back at [Petitioner]. He saw [Petitioner] fall to the

ground. As he approached [Petitioner], [Petitioner] said

he was in great pain and did not know they were the

police.

Gregory Foxworth, of the Jacksonville Sheriff’s

Office, testified that he was part of the team that

executed the search warrant on 111 West 42nd Street.

A semi-automatic firearm was in plain view on top of

the refrigerator. On the kitchen table there was

approximately $3,000 in cash, marijuana, and cocaine.

. . .

Sharon Holmes testified that on February 15,

2007, she was living at 117 West 42nd Street. Between

6:00 and 7:00 p.m.[,] she heard a popping noise. She

looked out the window and the police were in her

driveway with their guns pulled. The white cop was in

uniform. There were also police in jeans with “POLICE”

on their back. They were standing around someone.

. . . .

Jess[]e Peterson testified that on February 15,

2007, he was living at 140 West 42nd Street. On the

other side of the road, he heard gunshots. They were in

the direction of 111. Peterson saw unmarked cars, and

detectives with the word “POLICE” on the back of their

jackets.

Jeffery Gerbert, a lieutenant with the

Jacksonville Sheriff’s Office, testified that on February

15, 2007, he was dispatched to a shooting that occurred

at 111 West 42nd Street. He was dispatched at 6:34

p.m. Upon arrival, it was dark. [Petitioner] was on the

ground handcuffed. [Petitioner] was put in a Rescue

Unit and transported to Shands. Although Gerbert

could not identify [Petitioner], he testified that he

conversed with the individual en route to Shands who

said he was in a lot of pain, didn’t know what happened,

and that he was just standing there and “they shot me.”

Neil Chandler, of the Jacksonville Sheriff’s

Office, testified that on February 15, 2007, he was

dispatched to 111 West 42nd Street to secure the

perimeter. Chandler followed the ambulance. While at

the hospital, he maintained security of [Petitioner].

According to Chandler, [Petitioner] said to the nurse

“they just started shooting me.” Prior to [Petitioner]

going into surgery, a female came up and said “did the

police identify themselves” and [Petitioner] said, “no,

mama, they didn’t identify themself.”

Kim Melvin, an RN at Shands Jacksonville,

testified that she was working in the trauma center on

February 15, 2007. At that time, she came in contact

with [Petitioner]. She asked him what happened and

he said the police shot at him. [Petitioner] also said to

her that he was going down the street and that the

police shot at him and tried to kill him.

Detective Smith . . . testified that he was

dispatched to 111 West 42nd Street in reference to a

police-involved shooting. The scene was processed on

February 15, 2007. On February 26, 2007, Smith went

to Shands to interview [Petitioner]. [Petitioner] was

read his rights and agreed to speak. [Petitioner] said

somebody jumped out of the car and shot him.

[Petitioner] fired two or three shots in the air.

[Petitioner] told him that he was walking down the

street and saw two cars creeping up on him and the

people started shooting. Smith testified he told

[Petitioner] they had evidence that shows the direction

he fired his weapon. [Petitioner] then said he needed to

talk to them at another time.

Detective Mullinex . . . testified that he was part

of the crime scene unit that went to 111 West 42nd

Street on February 15, 2007. Independent of the police

firearms used in this case, he found a .9 millimeter

handgun and .9 millimeter shell casings on the ground.

The police were using .40 caliber. According to

Mullinex, the shell casings were consistent with the

firearm recovered. Mullinex processed Detective

Thomas’ vehicle. There were bullet holes in the right

fender at the very top, right in the center of the front

door frame, and the third one was located at the bottom

of the right rear door.

Maysaa Farhat, a crime lab analyst in the

Firearm Section of [the] Florida Department of Law

Enforcement, testified that he examined a .9 millimeter

Luger caliber high point-model C9, semi-automatic

pistol. Of the items recovered, one of the fragments

(projectile) had markings on it that were consistent

with being fired from a high point .9 millimeter

handgun. One of the items was of no value, and the

other item he examined was of the same class but there

was no determination whether or not it was fired from

the particular firearm or not. It was, however,

consistent with a high point .9 millimeter firearm with

the markings of that particular manufacturer. Farhat

also compared shell casings from this case and test-

fired them from the .9 millimeter gun. In his opinion,

the cartridge cases recovered were fired from the pistol

he received.

Antonio Miller testified that he is currently

incarcerated in the Duval County Jail awaiting

resentencing. While in the jail, he came in contact with

[Petitioner] as they were in the same dormitory. An in-

court identification of [Petitioner] was made by Miller.

According to Miller, [Petitioner] talked about his

situation with him. People would come to him about the

law as he attended the School of Paralegal Studies in

Norcross, Georgia. Miller is a jail house lawyer.

According to Miller, [Petitioner] told him that he

was at his cousin’s house on 42nd and Main.

[Petitioner] said that his cousin, a guy by the name of

Alonzo Wilson, was going to make a drug sale. Both

Wilson and [Petitioner] did drug deals out of the house.

After Wilson left the house to do a drug transaction,

[Petitioner] was looking out the window to see what

was going on outside and he said that he saw what he

believed was a vice car; a car with tinted windows,

tinted dark windows. [Petitioner] said he was spooked.

[Petitioner] told him he received a phone call from

Wilson. [Petitioner] got his hoodie, went out of the

house, and had his gun with one in the chamber. As he

turned toward Pearl Street, the passenger door of the

Impala swung open and the undercover officer got out

of the car. According to Miller, [Petitioner] said he saw

“POLICE” across his chest and when [Petitioner] saw

“POLICE” across the officer’s chest, [Petitioner] just

flipped out mentally. The officer had a shotgun pointed

downward and both of them made eye contact. At that

point, [Petitioner] said after he saw some hesitance on

the part of the officer, he was going to try to make a

break for it. [Petitioner] shot first. Miller then testified

that he left out the part that [Petitioner] told him he

heard the officer behind him say “freeze, stop, get down,

stuff like that.” According to Miller, [Petitioner] wanted

to use a self-defense theory. [Petitioner] wanted to use

a theory that he did not know it was the police and it

was just some random “jack boys”; that type thing.

[Petitioner] also said that he was going to bring up a

prior attempted robbery, something he just made up for

the purpose of convincing the jury. [Petitioner] said

that the prior robbery never took place and that it was

something that he wanted to use in his defense to

convince the jury so to speak. Miller also testified that

[Petitioner’s] rationale for shooting at the police was

that he wanted to get away and did not want to get

busted.

. . . .

On redirect examination, Miller testified that he

was sentenced to 60 years for two sales of cocaine. He

hoped that his testimony may be considered by the

judge as to whether or not he gets 60 years again. Miller

also testified that another part of the defense that he

and [Petitioner] went over was the lighting that night.

According to Miller, [Petitioner] was going to say that

it was darker than it actually was that night and that

he couldn’t tell it was an officer so to speak.

For the defense, Isaac Wilder testified that he is

serving a life sentence. Wilder met Antonio Miller at

the Duval County Jail as they were in the same dorm.

Miller talked to him about the benefit of becoming a jail

house informant. Miller also talked to him about

[Petitioner’s] case and how he obtained information

from [Petitioner]. Miller would read [Petitioner’s]

paperwork while he was gone. Miller told Wilder that

he couldn’t get [Petitioner] to talk about anything. He

was getting information about [Petitioner’s] case from

the outside through his girlfriend, through a partner he

worked with in the past, and through his attorney.

Miller talked to him about how [Petitioner’s] case

would get him a lot of points. In other words, Miller’s

time would be knocked off because of the publicity of

the case.

Avery Highsmith testified that he is under a

sentence for false imprisonment. He would rake yards

in the neighborhood of 42nd Street. On February 13,

2007, he went to Alonzo Wilson’s house to do yard work.

Highsmith spoke to Wilson and [Petitioner]. Highsmith

told [Petitioner] that there are guys going around the

neighborhood robbing people. They were riding around

in a 626 Mazda and a lot [of] shooting was going on.

[Petitioner] testified that he was at Alonzo

Wilson’s house on the 15th[.] He got over there between

12:30 and 1:30 p.m. Cap, also known as Avery Smith,

came to the door that day and told him to be careful out

there. There was a 626 Mazda robbing people and

shooting people. [Petitioner] testified that he went to

his car and retrieved his pistol. He went back to the

entertainment room in the house.

[Petitioner’s] cousin, Alonzo Wilson, was in his

room. [Petitioner’s] cousin soon left the house and

asked if he could hold [Petitioner’s] car. [Petitioner]

said sure and gave him the key. The holster was still in

the car in the middle compartment between the seats.

[Petitioner] testified that he heard from Wilson again

about 20 minutes later. [Petitioner] just turned on the

6:00 p.m. sports center. Wilson said he was having car

trouble and was in the Pearl Street area. [Petitioner]

walked out, had his hoodie on, and went towards Pearl

Street. [Petitioner] had his gun with him based on what

Cap told him about the Mazda. He was walking down

the sidewalk and heard a person who was fixing to rob

him or even try to kill him. He was in fear. [Petitioner]

reached for his handgun and turned. There was

another car but nobody said anything. [Petitioner] went

to run and started shooting towards the person that

was threatening his life. [Petitioner] testified he did not

see anything written on the person’s shirt who was

holding a weapon. He did not see a badge that said

Sheriff’s Office or the word “POLICE” across the chest.

This was around 6:30 p.m. It was dark, he was under

trees, and all he saw was this big object. He did not

recognize anyone to be a policeman in the car that

pulled up behind him. [Petitioner] was not trying to hit

anyone but was just trying to get away. [Petitioner]

started running and he fell as he was shot. They kept

shooting while he was on the ground. Individuals came

up to him and gathered around him. [Petitioner]

testified that he said “don’t take my life.” He thought

they were trying to rob him. One of them said “we are

the police.” [Petitioner] said, “I would never shoot at

police, I thought you were trying to rob me.”

While at the hospital, [Petitioner] remembered

seeing his mom. She asked him who did this to him and

he said the police. She asked him did they identify

themselves and he said no, they didn’t. [Petitioner]

learned he was shot 21 times. [Petitioner] could not

recall his conversation with Detective Smith as he was

on morphine and Percocet at the time. While at the jail,

he learned that Antonio Miller was a snitch. He found

this out when he first got into the dorm. [Petitioner]

testified that he did not talk to anyone about his case

at the jail.

On cross-examination by the State, [Petitioner]

testified that he had no idea of the $3,000 in cash, the

cocaine, or the other drugs in the kitchen. [Petitioner]

also testified about an attempted robbery that occurred

on December 13, 2005, when shots were fired at him.

This played a part as to how he reacted in this case. The

incident in 2005 occurred at 4628 Springfield

Boulevard. The police were never called. The shots hit

the house. There were wood chippings from the shots.

There was a second incident in which the police were

called. This was a burglary to the house at 4628

Springfield Boulevard but he was not at the house at

the time. [Petitioner] also testified on cross-

examination that no one said “police” that night.

Andrew Daniels testified that in 2005 he resided

with [Petitioner] at 4628 Springfield Boulevard.

Daniels heard [Petitioner] say to someone that he did

not have any money while on the house property. There

was a second incident within a two-week time span. In

the first incident, he heard a series of loud shots. He

was in the house when he heard the shots. [Petitioner]

said to him, “hey brother are you all right, yes, I’m

okay. What’s going on, I have no idea what’s going on,

make sure you stay safe.” [Petitioner] was frightened

and scared. 911 was called but he didn’t wait for the

police. In the second incident, the house was

burglarized. The police were called and a report was

taken. Daniels testified that he observed shattered

pieces of wood on the house that were not there prior to

the gunshots from the incident. After the incident,

[Petitioner] acquired a gun for his safety.

. . . .

Dr. Harry Krop, a licensed clinical psychologist,

testified that he conducted a forensic psychological

evaluation on [Petitioner]. Dr. Krop read affidavits of

witnesses, depositions, prior transcripts of prior

proceedings, and an affidavit from Andrew Daniels. Dr.

Krop diagnosed [Petitioner] with situational

depression and post-traumatic stress disorder. In Dr.

Krop’s opinion, [Petitioner’s] post-traumatic stress

disorder was operating at the time of the incident.

On cross-examination, Dr. Krop testified that he

would not have diagnosed [Petitioner] with post-

traumatic stress disorder if he had not experienced a

prior incident from 2005.

In rebuttal, Alexander Chambers, of the

Jacksonville Sheriff’s Office, testified that on December

15, 2005, he was dispatched to a burglary complaint at

4628 Springfield Boulevard. Chambers met with

Daniels. The front door was forced in. The door jamb

was busted. According to Chambers, Daniels did not

report a shooting nor did he point out any bullet holes.

Christy Conn, of the Jacksonville Sheriff’s Office,

testified that in December 2005 she was a crime scene

technician. On December 15, 2005 she was dispatched

to 4628 Springfield Boulevard. She did not observe

bullet strikes or bullet damage to the front door area of

the residence. Nothing was mentioned about a previous

shooting nor were any photographs taken.

Resp. Ex. B12 at 4-19 (record citations omitted).

In its answer brief, the state generally accepted Petitioner’s statement of

the facts. Resp. Ex. B13 at 5. But it added these clarifications:

Sgt. Demps testified that when he exited the

vehicle with the shotgun, it was pointed down and the

safety was on. [Petitioner] fired three to four shots

before Sgt. Demps could raise the shotgun and engage,

shooting at [Petitioner] five times. After he emptied the

shotgun, he used his handgun, firing at [Petitioner]

eleven times. [Petitioner] fired three shots at Detective

Thomas’ vehicle before pointing his gun at Sgt. Demps.

At the time Detective Hart was yelling something, Hart

was closer to [Petitioner] than Sgt. Demps was. On

cross-examination, Sgt. Demps stated the purpose of

the warrant was not guns, it was cocaine. [Petitioner]

was detained to get him away f[rom] the weapons and

then serve the warrant. The area was well lit. He was

“pretty sure” Detective Hart yelled police. All of the

officers had “Police” on them the entire time and it was

evident that they were officers.

On re-direct, photos of how Sgt. Demps was

dressed that night which were taken that evening at

the Police Memorial Building were introduced.

Detective Hart was yelling at [Petitioner] prior to the

time [Petitioner] produced the gun and shot at him. The

officers did not fire at [Petitioner] until after he fired at

them.

Detective Hollins identified photos taken the

night of the shooting depicting his attire, including the

vest with “Police” on it. It was still visible outside when

they arrived to execute the warrant. [Petitioner] looked

at Sgt. Demps, looked at Detective Hollins and then

looked back at Sgt. Demps. At that point, Detective

Hollins had not thought there was any reason to pull

out his gun. He heard Detective Hart say “Police.” After

he was apprehended, [Petitioner] asked if they were

going to take him to jail; he mentioned it first. On cross-

examination, Detective Hollins testified he could see

[Petitioner] and [Petitioner] could see him.

Detective Thomas testified from where he was

sitting in his car, he could see Sgt. Demps and see the

word “Police” written across the Sgt.’s jacket. He heard

Detective Hart yell “police, get on the ground,” as Hart

exited the vehicle. [Petitioner’s] first shot entered

Thomas’ vehicle. The shot brought Detective Hart back

into their vehicle, literally on top of Detective Thomas,

as he fired back at [Petitioner] through the window.

Both officers were then able to exit the vehicle. After

[Petitioner] was apprehended, he heard [Petitioner] say

that he didn’t want to go to jail; none of the officers

mentioned jail. Detective Thomas identified photos of

himself taken that night in the tactical gear he wore.

Detective Hart testified that he was attired in a

tactical ballistics vest that had “police” on the front and

back of it. It was worn for officer safety and clearly

identified him as an officer. After Alonzo Wilson was

detained, Detective Hart went back to the house about

15 minutes later. Detective Hart identified

photographs of how he was dressed that night,

including a mask he donned after the shooting to

protect his identity. When [Petitioner] exited the

residence and they pulled out, Detective Hart’s window

was rolled down so he could get a good look at

[Petitioner], announce their identity and allow

[Petitioner] to see who was in the car. He did not have

any weapons in his hand as they drove up. He had no

difficulty seeing [Petitioner]; it was still light out.

As they came to a stop, Detective Hart opened his

door and yelled “Police” through the microphone at the

same time; it was very loud. [Petitioner] began shooting

directly at him [ ], immediately after he announced they

were police. He was certain [Petitioner] fired the first

shot. He did not have time to yell anything else before

[Petitioner] opened fire. At the time he believed

[Petitioner] fired two shots into the vehicle; he later

learned it was three. Detective Hart retrieved his AR-

15 and began shooting back at [Petitioner].

. . . .

Sharon Holmes testified that . . . [w]hen she

looked out of the window she saw officers in her

driveway pointing guns toward the Wilson residence.

One white cop was in full uniform while others were

standing around someone. They were wearing things

which read police on the back, she could only see their

backs. Based upon her vantage point, she could tell

they were police.

. . . .

Jesse Peterson testified that . . . [h]e could see

officers with the word police on their vests. He was

immediately able to recognize them as police.

Lt. Jerry Gerbert[,] of the Jacksonville Fire

Department, testified that the only thing [Petitioner]

said when he was being transported to the hospital was

that he was just standing there and they shot him.

RN Kim Melvin testified that [Petitioner] never

said anything to the effect that he thought he was being

robbed or anything about jack men.

Resp. Ex. B13 (record citations omitted).

IV. Second Amended Petition

Ground One

Petitioner contends his trial counsel was ineffective for allowing his

justifiable use of deadly force defense to be negated by the trial court’s reading

of the inapplicable “stand your ground/no duty to retreat” portion of §

776.013(3), Florida Statutes. Doc. 17 at 5. According to Petitioner, his self-

defense theory at trial arose under only § 776.012, which at the time of his trial

contained no duty to retreat regardless of Petitioner’s unlawful activity.7 In

contrast, § 776.013(3), which Petitioner contends was a separate theory of self-

defense inapplicable to Petitioner’s case, contained a duty to retreat for those

7 In 2014, the legislature amended § 776.012 to include the “unlawful activity”

preclusion contained in § 776.013(3). See Garrett v. State, 148 So. 3d 466 (Fla. 1st

DCA 2014).

engaged in unlawful activity. He also argues trial counsel should have

requested a special instruction on duty to retreat. Id.

Petitioner raised this claim in his Florida Rule of Criminal Procedure

3.850 motion. Resp. Ex. D1 at 34-42. The trial court summarily denied the claim

as follows:

In his first claim for relief, Defendant alleges that

defense counsel was ineffective for failing to object to

the Court’s reading [of] the inapplicable “stand your

ground/no duty to retreat” instructions from section

776.013(3), Florida Statutes, and for failing to request

a special jury instruction on duty to retreat. The

allegedly objectionable jury instruction was read as

follows:

If the defendant was not engaged in an

unlawful activity and was attacked in any

place where he had a right to be he had no

duty to retreat and he had the right to

stand his ground and meet force with force

including deadly force if he reasonably

believed that it was necessary to do so to

prevent death or great bodily harm to

himself or to prevent the commission of a

forcible felony.

Defendant alleges the instruction was based on section

776.013(3), Florida Statutes, but that the correct

instruction, on which his defense was based, should

have tracked section 776.012, Florida Statutes, which

imposes no duty to retreat regardless of whether a

defendant is engaged in unlawful activity. Defendant

admits that, by carrying a concealed firearm, he was

engaged in unlawful activity. He asserts that the

instruction read to the jury “negated” his defense.

Defendant cites Stoute v. State, 987 So. 2d 748,

749 (Fla. 4th DCA 2008), where an erroneous jury

instruction was solely responsible for negating that

defendant’s only defense of self-defense. Similarly, in

Dorsey v. State, 149 So. 3d 144, 145 (Fla. 4th DCA

2014), the court found fundamental error and reversed

for a new trial where a jury was erroneously instructed

to consider a defendant’s duty to retreat. The instant

case, however, is distinguishable and is more like

Garrett v. State, 148 So. 3d 466 (Fla. 1st DCA 2014). In

addition to the instruction quoted above, this jury was

instructed, without reference to a duty to retreat, that

“[a] person is justified in using deadly force if he

reasonably believes that such force is necessary to

prevent imminent death or great bodily harm to

himself or another or the imminent commission of a

robbery against himself or another.” Although, like

here, the jury in Garrett was erroneously instructed

that the defendant had a duty to retreat if engaged in

unlawful activity, the Garrett court looked at the jury

instructions as a whole and determined that

Garrett’s claim of self-defense turned on

whether the evidence before the jury

supported a reasonable belief that Garrett

was under threat of imminent death or

great bodily harm or the imminent

commission of a forcible felony by [the

alleged aggressor]. The erroneous

instruction did not affect the jury’s

ultimate responsibility to determine

whether the threat faced by Garrett was

imminent, in which case retreat would be

futile and his use of deadly force would be

justified, irrespective of whether he was

engaged in unlawful activity at the time.

Garrett, 148 So. 3d at 472-73 (emphasis in original).

Based on that analysis, the Garrett court found no

fundamental error in the jury instructions. Id. at 473.

Defendant is mistaken when he asserts that “defense

counsel ignored the fact that the only instruction

explaining his defense, actually negated it.” Like the

jury in Garrett, this jury was given an instruction on

imminent harm which was not conditioned on the

lawfulness of Defendant’s activity and therefore would

have allowed them to find for Defendant. The jury

instructions, viewed as a whole, did not negate

Defendant’s only defense. Therefore, counsel’s failure

to object to the jury instructions was not deficient

performance.

There was testimony at trial about the dress and

appearance of the officers involved, and what could be

seen and recognized, even from farther away than from

where Defendant was. Detective [ ][8] testified that

some of the officers involved in the shooting with

Defendant were dressed in black tactical gear with a

JSO badge on it and the word “police” on the front and

back, as well as gun belts with handcuffs, radios, etc.

Sergeant [ ], one of the four officers involved, was

dressed at trial in the same way as [he was] on the day

of the shooting: in a jacket marked with police insignia

and a gun belt. He testified that the other three

members of the team that day wore tactical vests with

a badge. Sergeant [ ] testified he got a good look at

Defendant’s face before he got out of the car and faced

Defendant from 30-40 feet away and that he and

Defendant made eye contact as they stood facing each

other. This is in contrast to Defendant’s testimony that

he did not focus on Sgt. [ ] or his clothing, but only saw

the sergeant’s gun.

Detective [ ], the driver of the car where Sgt. [ ]

was a passenger, testified he wore tactical gear

including a gun belt and a vest bearing police markings

and a badge. He testified [it] was 6:20 or 6:30 in the

evening, and that he could still see outside, and that

Defendant appeared to see him and Sgt. [ ] and to make

eye contact with them. While Defendant was looking at

8 In its Rule 3.850 order, the trial court redacted the names of the officers

involved in the incident.

Det. [ ] and Sgt. [ ], Det [ ] got out of the other car, and

Det. [ ] heard Det. [ ] yell, “police” and “get on the

ground.” Defendant testified that no one said anything.

While he was still in the car after stopping, Sgt. [ ] could

clearly see Sgt. [ ] standing beside the other car and

could see the word “police” across Sgt. [ ]’s jacket.

Sergeant [ ] also testified that he heard Det. [ ] yelling

“police” and “get down.” Detective [ ] was riding in the

front passenger seat of an unmarked police car. He was

dressed in black pants, shirt, and vest, with “police”

marked on the front and back of the vest. The car Det.

[ ] was riding in came to a stop behind Defendant on the

sidewalk after the other car had stopped in front of

Defendant. When the car stopped, Det. [ ]’s window was

lowered so he could communicate with Defendant and

Defendant could see who was in the car. After the cars

stopped, Det. [ ] opened his car door, placed one foot

outside, and yelled, “police,” and Defendant began

shooting at Det. [ ].

After Defendant had been shot and Det. [ ] was

approaching him, Defendant was face down on the

ground, facing away from Det. [ ] when Defendant said

he did not know they were police. The unlikelihood that

he could see Det. [ ] approaching as he was speaking

(and, therefore, identify him as police for the first time)

is further evidence that Defendant knew they were the

police while he was shooting at them.

Sharon Holmes, who lived next door to

Defendant’s cousin’s house (where Defendant was

walking from when the unmarked police cars pulled

up), testified that, after hearing popping and booming

sounds, she looked out her front window and saw

several police officers standing around someone near

Defendant’s cousin’s house wearing jeans and with

“police” marked on their upper backs. The jury also

heard from Jesse Peterson, who lived across the street

and a few houses away from Defendant’s cousin’s

house. Mr. Peterson heard gunshots from the direction

of Defendant’s cousin’s house and went out on his front

porch. From his porch, Mr. Peterson could see two

unmarked cars and detectives with the word “police” on

their jackets and vests.

There was ample evidence about the visibility of

identification on the police officers’ clothing, the

available lighting, and Detective [ ]’s verbal

identification of them as police, from which the jury

could have concluded that Defendant should have

known, or actually did know, that he was shooting at

police officers performing their duty, which would have

defeated his claim of self-defense. The failure of

Defendant’s defense of justifiable use of force was just

as likely, if not more likely, attributable to the fact that

the jury gave little credence to Defendant’s testimony

that he believed he was defending himself from

robbers, than to a jury instruction. Therefore, had

counsel objected to jury instructions and argument that

Defendant could not avail himself of the defense of

justifiable use of force because he carried a firearm

illegally, and had counsel requested a special jury

instruction on duty to retreat, there is no reasonable

probability that the outcome of [the] trial would have

been different. See Shootes v. State, 20 So. 3d 434, 436

(Fla. 1st DCA 2009) (reversing after first trial, noting

that “visual presentation of the officers was . . . a

feature of the trial and was pivotal to Appellant’s

theory of defense.”). Defendant’s first ground is without

merit.

Resp. Ex. D1 at 135-39 (record citations omitted). Petitioner appealed, and the

First DCA per curiam affirmed the trial court’s denial without a written

opinion. Resp. Ex. D5.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. In doing so, the

Court heeds the state court’s conclusion that it was error to include §

776.013(3)’s unlawful activity/duty to retreat language in the jury instruction

for justifiable use of deadly force. When Petitioner committed the offenses in

2007, § 776.012 and § 776.013(3) contained subtle and important distinguishing

characteristics – the former having, at that time, no duty to retreat regardless

of unlawful activity – and because Petitioner presented evidence supporting a

defense under § 776.012, he was entitled to receive an instruction that followed

only the language of that statute. See Garrett, 148 So. 3d at 471 (citing Little v.

State, 111 So. 3d 214 (Fla. 2d DCA 2013) (explaining at length the

distinguishing characteristics of § 776.012 and § 776.013(3)). But during the

trial court’s charge conference, the parties and the trial court did not have the

benefit of the Second District Court of Appeal’s decision in Little, the case on

which the First DCA relied on in Garrett, because it was issued in April 2013;

nor did they have guidance from the flurry of post-Little case law clarifying the

distinct avenues of § 776.012 and § 776.013(3). See Dooley v. State, 268 So. 3d

880, 887 (Fla. 2d DCA 2019) (collecting cases). Instead, the parties agreed that

at that time, the justifiable use of deadly force instruction used in Petitioner’s

case tracked the standard jury instruction. Resp. Ex. B14 at 815-16.

But of more import, the Court defers to the state court’s conclusion that

the erroneous jury instruction did not affect the outcome of Petitioner’s trial;

and thus, in turn, Petitioner has failed to show prejudice under Strickland.

While the improper instruction required the jury to consider if Petitioner had a

duty to retreat based on unlawful activity, the trial court also instructed that

the lawfulness of Petitioner’s activity had no impact on Petitioner’s actions if

Petitioner reasonably believed that force was necessary to prevent imminent

death or great bodily harm. Resp. Ex. B1 at 170-71; see also § 776.012, Fla. Stat.

(2009) (“[A] person is justified in the use of deadly force and does not have a

duty to retreat if . . . [h]e or she reasonably believes that such force is necessary

to prevent imminent death or great bodily harm to himself or herself or another

or to prevent the imminent commission of a forcible felony.”).

Additionally, as the state court explained, considering the totality of the

evidence, as well as the jury instructions as a whole, the jury had ample facts

to conclude that Petitioner was not justified in using deadly force. As such,

Petitioner cannot show that but for trial counsel’s alleged error, the outcome of

his trial would have been different. Thus, upon review, the state court’s

adjudication of this claim was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings. See 28 U.S.C. § 2254(d). Ground One is denied.

Ground Two

Petitioner argues that his trial counsel was ineffective for opening the

door during Detective Smith’s trial testimony and allowing the state to elicit

testimony that made Petitioner’s “right to remain silent a feature of the trial.”

Doc. 17 at 10-14.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. D1 at 67.

The trial court summarily denied the claim as follows:

In his seventh claim for relief, Defendant alleges

that counsel was ineffective for opening the door and

permitting the State to make his invocation of his right

to remain silent a feature of the trial. He asserts

counsel opened the door by faulty cross-examination of

Detective Warren Smith that elicited testimony that

Defendant invoked his right to remain silent once

confronted with evidence of bullet holes in [ ] one of the

officers’ cars, which contradicted Defendant’s

statement to the witness that he had fired shots “into

the air.” Detective Smith testified he was the lead

investigator of the shooting and, in that capacity, he

went to Shands Hospital 11 days after the shooting to

interview Defendant. He read Defendant his rights in

the hospital room. He testified that Defendant told him

somebody jumped out of the car and shot at him, and

that he fired two or three shots in the air. Detective

Smith testified he told Defendant that, based on

evidence of gunshots to the car carrying Detectives [ ]

and [ ], Defendant fired at the police, and he asked

Defendant to tell him what he knew, from the

beginning. During his narrative, Defendant told Det.

Smith again that he fired two or three times into the

air. When Det. Smith told Defendant the police had

evidence of the specific direction Defendant had fired

his weapon, Defendant stated that he needed to talk to

the police later, at another time, and the interview

ended.

On cross-examination, defense counsel elicited

testimony that Defendant told Det. Smith he needed to

get some sleep and talk to his attorney, which defense

counsel characterized as exercising his constitutional

right not to speak. Defense counsel elicited testimony

that the police officers involved in the shooting also

spoke with their attorneys before making a statement.

On redirect, the State elicited testimony that

Defendant asked for his lawyer when the detective

confronted him about the bullet strikes in the police

officers’ car. In its first closing argument, the State

mentioned that Defendant asked for a lawyer when

Det. Smith confronted him about the evidence of bullet

holes in the car. In Defendant’s closing, counsel argued

that, when Defendant realized Det. Smith was there to

try to get evidence to convict Defendant, he had the

good sense to stop talking and ask for a lawyer, which

was his right. In its rebuttal closing, the State

mentioned Defendant’s request for a lawyer as proof

that he understood his rights, but emphasized the fact

that Defendant did not tell Det. Smith he believed he

was being robbed.

It is evident that, even without the cross-

examination, based on Det. Smith’s testimony on direct

examination, the State would have pointed out in

argument that Defendant ended the interview with

police when he was confronted with evidence of gunshot

damage to the car. The addition of the fact that he also

asked for a lawyer upon ending the interview did not

become a feature of the trial, as Defendant alleges. Had

counsel not elicited the fact that Defendant asked for a

lawyer, there is no reasonable probability that the

outcome of trial would have differed.

On [direct] appeal, Defendant argued that the

State’s commentary on Defendant’s invocation of his

right to remain silent constituted fundamental error.

The First District’s rejection of that claim of error

means Defendant is unable to show prejudice on this

Amended Motion based on the State’s closing

argument. See Chandler v. State, 848 So. 2d 1031, 1046

(Fla. 2003). If the State’s argument did not result in

prejudice sufficient to undermine confidence in the

outcome, it follows that neither did defense counsel’s

performance which opened the door to that argument.

Defendant’s seventh ground is without merit.

Resp. Ex. D1 at 146-47 (record citations omitted). Petitioner appealed, and the

First DCA per curiam affirmed the trial court’s denial without a written

opinion. Resp. Ex. D5.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. As the trial court

noted, regardless of trial counsel’s cross-examination, Detective Smith would

have testified on direct examination about Petitioner ending the interview once

Smith confronted him with evidence of the direction Petitioner fired his weapon.

To explain Petitioner’s actions, on cross-examination, trial counsel merely

elicited testimony that it was Petitioner’s right to terminate the conversation

and that his decision to not discuss anything further was not dispositive of

Petitioner’s guilt. This testimony did not become a feature of the trial, and

Petitioner has failed to show that but for this alleged error, a reasonable

probability exists that the outcome would have been different. As such, upon

review, the state court’s adjudication of this claim was neither contrary to nor

an unreasonable application of Strickland, and it was not based on an

unreasonable determination of the facts in light of the evidence presented in

the state court proceedings. See 28 U.S.C. § 2254(d). Ground Two is denied.

Ground Three

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

“collateral estoppel” based on the state appellate court’s oral argument during

Petitioner’s direct appeal, following his first trial, during which the appellate

court discussed Petitioner’s motion to suppress. Doc. 17 at 15-16. According to

Petitioner, since the motion to suppress was discussed during oral argument

and the appellate court suggested the subject statements were obtained

illegally, trial counsel should have put the trial court on notice during the third

trial that the trial court “had a ministerial duty to grant” the motion to

suppress. Id. at 16.

Respondents argue that Petitioner never presented this claim to the state

court, and thus it is unexhausted and procedurally defaulted. Resp. at 8-10.

Petitioner concedes that he never presented this claim to the state court but

argues that it is not procedurally defaulted because this Court permitted him

to file the Second Amended Petition raising this claim. Doc. 21 at 6-7. He

otherwise attempts to overcome the procedural bar under Martinez, arguing

that he can show “cause” to excuse his default because he did not have

postconviction counsel during his state court Rule 3.850 proceedings. Id. at 7.

To the extent that Petitioner relies on this Court allowing him to file a

Second Amended Petition to overcome his failure to present this claim to the

state court, that argument fails. In allowing Petitioner to amend, the Court

made no findings as to the merits or procedural correctness of his claims.

As to Petitioner’s other argument, under Martinez, Petitioner must prove

more than the general assertion that the trial court did not appoint counsel in

the initial-review collateral proceeding. 566 U.S. at 14. Petitioner must “also

demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is

a substantial one, which is to say that the prisoner must demonstrate that the

claim has some merit.” Id. (citations omitted); see also Lambrix v. Sec’y Fla.

Dept. of Corr., 851 F.3d 1158, 1164 (11th Cir. 2017). But his claim is

“insubstantial” if “it does not have any merit or . . . is wholly without factual

support.” Id. at 16. For the reasons that follow, the Court finds that even if

Petitioner shows that his lack of postconviction counsel caused his procedural

default, he cannot show that his underlying ineffective assistance of counsel

claim is substantial.

Under Florida law, collateral estoppel applies in a case if (1) an identical

issue is disputed, (2) that has previously been fully litigated, (3) by the same

parties or their privies, and (4) a final decision has been rendered by a court of

competent jurisdiction. Stogniew v. McQueen, 656 So. 2d 917, 919-20 (Fla.

1995); Essenson v. Polo Club Associates, 688 So. 2d 981, 983 (Fla. 2d DCA 1997);

Quinn v. Monroe Cnty., 330 F.3d 1320, 1329 (11th Cir. 2003).

Prior to his first trial, in July 2007, Petitioner, through trial counsel,

moved to suppress the statements Petitioner made to officers while he was in

the hospital immediately after the incident, arguing he was under the influence

of narcotics and pain medication that rendered those statements involuntary.

Resp. Ex. B1 at 66-67. During his third trial, in February 2011, however,

Petitioner’s pre-trial motion to suppress sought to suppress – “Any and all

evidence illegally seized, including but not limited to: a 9mm firearm and/or any

verbal and non-verbal conduct on the part of the [Petitioner], by and through

the officers’ illegal search and seizure, based on a police-citizen encounter

involving an illegal investigatory stop[,]” because, at the time of the take down,

officers did not have probable cause to believe that Petitioner had committed or

was committing a crime. Resp. Ex. B3 at 430-41.

Here, because the factual issues discussed in Petitioner’s first motion to

suppress were not identical to those discussed and argued in his 2011 motion

to suppress, collateral estoppel does not apply. See, e.g., Marton v. Lazy Day

Prop. Owners Ass’n, Inc., No. 2:10-cv-117-FTM-29-DNF, 2011 WL 1232375, at

*4 (M.D. Fla. Mar. 30, 2011) (“[C]ollateral estoppel does not apply because the

issues presented in the State Action are different from the issues presented in

this case.”). Thus, because a collateral estoppel argument would have failed this

claim lacks merit and therefore is insubstantial. As such, Petitioner cannot rely

on Martinez to excuse the procedural default of this claim. Likewise, Petitioner

has failed to demonstrate that failure to consider this claim on the merits will

result in a fundamental miscarriage of justice. Ground Three is due to be

denied.

Ground Four

Petitioner asserts that his trial counsel was ineffective for failing to call

eyewitness Justin Daughrity9 to support Petitioner’s self-defense theory at his

third trial. Doc. 17 at 17-18.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. D1 at 58.

The trial court summarily denied the claim as follows:

In his fifth claim for relief, Defendant alleges that

counsel was ineffective for failing to call an eyewitness,

Justin Daughrity. Defendant asserts Daughrity’s

testimony would have supported Defendant’s claim of

self-defense. Defendant claims the witness saw

unmarked police cars suddenly stopping, and black

males exiting the cars, thought a robbery was in

progress, and did not see “police” on their clothes until

they began running. Defendant asserts the witness

would have corroborated Defendant’s belief that

undercover officers were attempting to rob Defendant.

In the first trial, the witness testified that he was

parked on the south side of 42nd Street when a maroon

car pulled up next to him. When the car pulled up, he

looked and did not recognize who it was, but saw that

they were jumping out of the car. He did not know if

they were going to rob him, so he locked his doors. After

they got out of the car, the witness could see their backs

and recognized them to be police officers by the police

markings on their clothes. At the second trial, the

witness testified he did not see they were police when

they first exited the car, but only after they began

running. The witness was impeached with testimony

given at the first trial and conceded that he recognized

9 In his Second Amended Petition, Petitioner spells this witness’ name as

“Daughrity,” but the trial court’s order mentions that the transcripts use the spelling

“Daughtry” and “Daughtrey.” Resp. Ex. D1 at 143 n.2.

the men as police by seeing the backs of their shirts

immediately after they jumped out of the car. The

witness is a convicted felon. The witness’ testimony

contradicted Defendant’s testimony. The witness

testified it was still daylight outside. He testified that

police began yelling immediately after exiting car,

followed by gunfire. Defendant testified that it was

dark. He testified that no one spoke until after [the]

shooting was over.

The records of the three trials confirm that

Defendant was not prejudiced by the absence of Justin

Daughrity’s testimony at the third trial, and indeed

may have benefited from it. Defendant’s fifth ground is

without merit.

Resp. Ex. D1 at 143-44 (record citations omitted). Petitioner appealed, and the

First DCA per curiam affirmed the trial court’s denial without a written

opinion. Resp. Ex. D5.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. In doing so, the

Court has reviewed the exhibits to the trial court’s denial order, which includes

excerpts from Daughrity’s trial testimony at Petitioner’s first and second trials

and finds that Daughrity’s contradictory statements and testimony would not

have changed the outcome of Petitioner’s third trial. Resp. Ex. D1 at 343-45,

397-98. Upon review, the state court’s adjudication of this claim was neither

contrary to nor an unreasonable application of Strickland, and it was not based

on an unreasonable determination of the facts in light of the evidence presented

in the state court proceedings. See 28 U.S.C. § 2254(d). Ground Four is denied.

Ground Five

Petitioner alleges his trial counsel was ineffective for failing to file a

motion to dismiss based on Florida’s “Stand Your Ground” immunity from

prosecution. Doc. 17 at 19-21.

Respondents argue that Petitioner did not present this claim to the state

court, and thus it is unexhausted and procedurally defaulted. Resp. Ex. 10-12.

Petitioner concedes that this claim is unexhausted and again seeks to overcome

any procedural bar under the purviews of Martinez. Doc. 21 at 13.

Here, Petitioner has failed to overcome this procedural bar because

nothing suggests that the trial court would have granted a motion to dismiss

the information based on Florida’s “Stand Your Ground” law, § 776.013, Florida

Statutes; and thus, this claim is not substantial.

Section 776.013, Florida Statutes, or Florida’s “Stand Your Ground Law,”

provides:

A person who uses or threatens to use force as

permitted in s. 776.012, s. 776.013, or s. 776.031 is

justified in such conduct and is immune from criminal

prosecution and civil action for the use or threatened

use of such force by the person, personal

representative, or heirs of the person against whom the

force was used or threatened, unless the person

against whom force was used or threatened is a

law enforcement officer, as defined in s.

943.10(14), who was acting in the performance of

his or her official duties and the officer identified

himself or herself in accordance with any

applicable law or the person using or threatening

to use force knew or reasonably should have

known that the person was a law enforcement

officer. As used in this subsection, the term “criminal

prosecution” includes arresting, detaining in custody,

and charging or prosecuting the defendant.

§ 776.032(1), Fla. Stat. (2007) (emphasis added). Here, had trial counsel filed a

motion to dismiss as Petitioner suggests, the trial court would have conducted

an evidentiary hearing on the motion where the state would have presented the

same testimony and evidence as it did at trial. Considering the evidence

presented at trial showing that Petitioner knew or should have known that he

was using deadly force against a law enforcement officer, the trial court would

not have granted a motion to dismiss based on the “Stand Your Ground”

immunity. As such, this claim lacks merit and is insubstantial; therefore,

Petitioner cannot rely on Martinez to excuse the procedural default of this

claim. Likewise, Petitioner has failed to demonstrate that failure to consider

this claim on the merits will result in a fundamental miscarriage of justice.

Ground Five is due to be denied.

Ground Six

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

to the state’s impermissible impeachment of defense expert Dr. Krop using the

testimony of Dr. Miller, an expert who testified at the first trial but passed away

prior to the third trial. Doc. 17 at 22.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. D1 at 54.

The trial court summarily denied the claim as follows:

In his fourth claim for relief, Defendant asserts

that counsel was ineffective for failing to object to [the]

expert witness testimony of Dr. Harry Krop. Defendant

argues that the State impermissibly testified via

statements posed as questions to the witness, but the

portion of the trial transcript quoted contains merely

leading questions, which are permissible on cross-

examination. See Kembro v. State, 346 So. 2d 1083,

1084 (Fla. 1st DCA 1977). The State did not “testify.”

Defendant also argues that it was impermissible to

impeach Dr. Krop with the opinion of Dr. Miller, who

did not testify (he was deceased by then), but who

examined Defendant two-and-a-half years before Dr.

Krop did, and concluded Defendant did not have PTSD.

“One impeaches an expert’s opinion by the introduction

of a contrary opinion based on the same facts.”

Nowitzke v. State, 572 So. 2d 1346, 1352 (Fla. 1990).

There was no impermissible impeachment. Ground

Four is without merit.

Resp. Ex. D1 at 142-43 (record citations omitted). Petitioner appealed, and the

First DCA per curiam affirmed the trial court’s denial without a written

opinion. Resp. Ex. D5.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. In doing so, the

Court notes that in Florida, “[o]ne impeaches an expert’s opinion by the

introduction of a contrary opinion based on the same facts.” Nowitzke, 572 So.

2d at 1352. Here, the state, on cross-examination, used Dr. Miller’s prior

evaluation to impeach Dr. Krop’s diagnosis of Petitioner as having PTSD. Resp.

Ex. D1 at 312-13. This was a proper impeachment, and thus any objection from

counsel would have been meritless. To that end, upon review, the state court’s

adjudication of this claim was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings. See 28 U.S.C. § 2254(d). Ground Six is denied.

Ground Seven

Petitioner argues that his appellate counsel was ineffective for failing to

argue on direct appeal that the trial court erred in instructing the jury on the

inapplicable “stand your ground/no duty to retreat” portion of § 776.013(3),

Florida Statutes. Doc. 17 at 25.

Following Petitioner’s third trial and direct appeal, he filed a petition

with the First DCA raising this current claim of ineffective assistance of

appellate counsel. Resp. Ex. C1 at 8. The First DCA issued an opinion denying

the petition, which provided in full – “The petition alleging ineffective

assistance of appellate counsel is denied on the merits.” Resp. Ex. C4.

Thus, the Court addresses Petitioner’s ineffective assistance of appellate

counsel claim under the deferential standard for federal court review of state

court adjudications. In doing so, the Court gives considerable deference to

appellate counsel’s strategic decision of selecting the issue or issues to raise on

appeal. The danger of raising weaker issues in a “kitchen-sink” approach is that

it detracts from the attention an appellate court can devote to the stronger

issues and reduces appellate counsel’s credibility. See Miller v. Keeney, 882

F.2d 1428, 1434 (9th Cir. 1989); see also McBride v. Sharpe, 25 F.3d 962, 973

(11th Cir. 1994). Thus, effective appellate attorneys “will weed out weaker

arguments, even though they may have merit.” Philmore, 575 F.3d at 1264; see

also Overstreet, 811 F.3d at 1287. Appellate counsel’s failure to raise a meritless

or weaker issue does not constitute deficient performance. See Brown v. United

States, 720 F.3d 1316, 1335 (11th Cir. 2013) (citing Jones v. Barnes, 463 U.S.

745, 754 (1983)); Owen, 568 F.3d at 915. Prejudice results only if “the neglected

claim would have a reasonable probability of success on appeal.” Philmore, 575

F.3d at 1264-65.

As explained in Ground One above, it was error to include § 776.013(3)’s

unlawful activity/duty to retreat language in the jury instruction for justifiable

use of deadly force. Because Petitioner presented evidence supporting a defense

under § 776.012, he was entitled to receive an instruction that followed only the

language of that statute. See Garrett, 148 So. 3d at 471 (citing Little, 111 So.

3d at 214 (explaining at length the distinguishing characteristics of § 776.012

and § 776.013(3)). But during Petitioner’s direct appeal, appellate counsel did

not have the benefit of the Second DCA’s decision in Little, the case on which

the First DCA relied, because it was issued in April 2013; nor did appellate

counsel have guidance from the flurry of post-Little case law clarifying the

distinct avenues of § 776.012 and § 776.013(3). See Dooley, 268 So. 3d at 887.

Instead, on this record, trial counsel did not object and preserve any error for

appellate counsel to pursue on appeal, and instead the parties agreed at trial

that at that time, the justifiable use of deadly force instruction used tracked the

standard jury instruction. Resp. Ex. B14 at 815-16.

In any event, Petitioner has failed to show prejudice under Strickland.

While the improper instruction required the jury to consider if Petitioner had a

duty to retreat based on unlawful activity, the trial court also instructed that

the lawfulness of Petitioner’s activity had no impact on Petitioner’s actions if

Petitioner reasonably believed that force was necessary to prevent imminent

death or great bodily harm. Resp. Ex. B1 at 170-71; see also § 776.012, Fla. Stat.

(2009) (“[A] person is justified in the use of deadly force and does not have a

duty to retreat if . . . [h]e or she reasonably believes that such force is necessary

to prevent imminent death or great bodily harm to himself or herself or another

or to prevent the imminent commission of a forcible felony.”).

Considering the totality of the evidence, as well as the jury instructions

as a whole, the jury had ample facts to conclude that Petitioner was not justified

in using deadly force. As such, Petitioner cannot show that but for appellate

counsel’s alleged error, a reasonable probability exists that the outcome of his

appeal would have been different. Thus, under the deferential standard of

AEDPA review, the state court’s adjudication of this claim was neither contrary

to nor an unreasonable application of Strickland, and it was not based on an

unreasonable determination of the facts in light of the evidence presented in

the state court proceedings. See 28 U.S.C. § 2254(d). Ground Seven is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Second Amended Petition (Doc. 17) is DENIED, and this case

is DISMISSED with prejudice.

2. The Clerk shall enter judgment dismissing this case with

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

3. If Petitioner appeals the dismissal of this case, the Court denies a

certificate of appealability.10 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.

10 The Court should issue a certificate of appealability only if a petitioner makes

“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

To make this substantial showing, Petitioner “must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims debatable

or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Upon due consideration,

the Court will deny a certificate of appealability.

DONE AND ORDERED at Jacksonville, Florida, this 13th day of

March, 2025.

& Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

Jax-7

C: Jacquan Shootes, #J36198

Counsel of record

AQ