Morris v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

FORT PIERCE DIVISION

Case Number: 16-14554-CIV-MARTINEZ/MAYNARD

RICHARD MICHAEL MORRIS,

Petitioner,

V.

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS

Respondent.

ee

ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE

THIS CAUSE is before the Court on Magistrate Judge Shaniek Mills Maynard’s Report

and Recommendation (ECF No. 45), (the “Report”), which recommends that Petitioner’s habeas

petition pursuant to 28 U.S.C. § 2254 (“Petition”) be denied, and that a certificate of appealability

be denied. Petitioner has filed Objections to the Report (ECF No. 51), (the “Objections”). After de

novo review of the Report, the Objections, and the record, and for the reasons discussed below, the

Report is affirmed and adopted, and Petitioner’s Objections are overruled.

I. LEGAL STANDARD

A district court may accept, reject, or modify a magistrate judge’s report and

recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to

which objection is made are accorded de novo review, if those objections “pinpoint the specific

findings that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir.

2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which

no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v.

WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v.

Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006).

II. DISCUSSION

A. Objection to Factual Finding

Petitioner “objects to the factual finding that he shot Mr. Jones.” (ECF No. 51 at 2.) The

Report’s factual finding was a summary of the evidence presented at Petitioner’s trial, which

resulted in a guilty verdict for first-degree murder. For the reasons explained below, the Report

correctly found that Petitioner failed to establish his actual innocence. Thus, Petitioner’s objection

to the factual finding is overruled.

B. Objection as to Claim One

Petitioner objects to the Report’s application of 28 U.S.C. § 2254(d)! to Claim One

because, he contends, this claim was not “adjudicated on the merits” in state court. (ECF No. 51 at

2.) Petitioner therefore insists that this claim must be reviewed de novo. (/d.) Even under de novo

review, however, this claim fails for the reasons explained in the Report. Petitioner alleged in

Claim One that the trial court erred by not allowing him to call an expert to testify on the reliability

of eyewitness identification. (ECF No. 1 at 5.) The Report correctly found that this claim did not

merit habeas relief because it raised essentially a state law evidentiary issue. (ECF No. 45 at 30.)

Petitioner objects to this finding; specifically, he contends that the trial court’s exclusion of expert

| Section 2254(d) provides that if a federal habeas claim was “adjudicated on the merits in

State court proceedings,” that claim may only be granted if it—“‘(1) resulted in a decision that was

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

determined by the Supreme Court of the United States; or (2) resulted in a decision that was based

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

proceeding.” Jd. If a claim was not adjudicated on the merits in state court, it is reviewed by the

federal court de novo. Cone v. Bell, 556 U.S. “ 472 (2009).

testimony on “change blindness”? violated his right to present witnesses in his defense. (ECF No.

51 at 4-6.)

As the Report concluded, this claim turned on a state-law evidentiary issue that did not rise

to the level of a due process violation. (ECF No. 45 at 30.) A federal court may grant habeas relief

on a state court’s evidentiary ruling only if the ruling affected the fundamental fairness of the trial.

Sims v. Singletary, 155 F.3d 1297, 1312 (11th Cir. 1998). “To render a state-court proceeding

fundamentally unfair, the excluded evidence must be ‘material in the sense of a crucial, critical,

highly significant factor.’” Taylor v. Sec’y, Fla. Dep’t of Corr., 760 F.3d 1284, 1296 (11th Cir.

2014) (quoting Boykins v. Wainwright, 737 F.2d 1539, 1544 (11th Cir. 1984)). “Such a

determination is to be made in light of the evidence as a whole.” Felker v. Turpin, 83 F.3d 1303,

1312 (11th Cir. 1996).

Here, the state trial court’s exclusion of expert testimony on “change blindness” was not a

crucial or significant factor in the trial. The expert testified during his proffer that change blindness

normally occurs with objects, not people, and is less likely to occur under “familiar circumstances”

where individuals know each other. (Trial Tr., Resp’t Ex. 12, ECF No. 10-2 at 679-80.)? Multiple

eyewitnesses who identified Petitioner as the shooter knew him personally. (ECF No. 45 at □□□□□

The expert also admitted that he did not know whether the concept of change blindness had passed

the Frye test. (Id. at 679.) Moreover, Petitioner had the ability to cross-examine the eyewitnesses

regarding the possibility of mistaken identification, and the jury did not need special knowledge or

experience to assess the reliability of eyewitness testimony. See Jones v. Smith, 772 F.2d 668, 674

* “Change blindness” occurs, according to Petitioner, “when an action by one actor is

interrupted and a second person performs a subsequent action. In such cases, the witness may

believe that the original actor performed the subsequent action.” (ECF No. 51 at 4-5.)

3 The page numbers in the citation refer to the electronically-generated pagination in

CM/ECF and not the original page numbers on the exhibit.

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(11th Cir. 1985) (holding that counsel’s failure to call an expert “as to the unreliability of

eyewitness testimony” did not constitute ineffective assistance because “[t]he likelihood of

mistaken identification . . . was brought to the jury’s full attention through cross-examination”);

Johnson y. State, 438 So.2d 774, 777 (Fla. 1983), vacated on other grounds by 205 So.3d 1285

(holding that the trial court properly excluded an expert witness in the field of eyewitness

identification, who “would have explained both the common problems in such identifications and

the general factors affecting a witness’ accuracy” because “[e]xpert testimony should be excluded

when the facts testified to are of such nature as not to require any special knowledge or experience

in order for the jury to form its conclusions” and “a jury is fully capable of assessing a witness’

ability to perceive and remember, given the assistance of cross-examination and cautionary

instructions, without the aid of expert testimony.”). In sum, the exclusion of expert testimony on

change blindness did not render the entire trial fundamentally unfair. Thus, Petitioner’s objection

as to Claim One is overruled.

C. Objection as to Claim Two

Petitioner objects to the Report’s rejection of his second claim, which alleged that the

prosecutor improperly shifted the burden of proof onto the defense during his closing argument.

(ECF No. 1 at 7.) As the Report correctly found, the prosecutor did not shift the burden because

he was merely pointing out a lack of evidence supporting Petitioner’s theory of defense. See

Lombardi v. Inch, No. 3:18-CV-1362-RV-HTC, 2020 WL 6731133, at *9 (N.D. Fla. Oct. 29, 2020)

(“It is not impermissible burden-shifting if the ‘prosecutor was responding to argument proposed

by the defense’ and ‘close examination of the entire closing argument demonstrates that these

comments addressed theories that were raised during the defense cross-examination of the State’s

witnesses and during closing argument but were never contradicted with evidence.’” (quoting

Robards v. State, 112 So.3d 1256, 1270 (Fla. 2013))). The prosecutor was highlighting the fact that

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Petitioner’s theory of defense was misidentification, yet defense counsel failed to provide any

evidence to support her claim that the witnesses who identified Petitioner as the shooter had

conspired to pick him out of a photo lineup. (See Trial Tr., Resp’t Ex. 12, ECF No. 10-2 at 1162—

63.) The Report correctly found that this argument did not improperly shift the burden of proof.

In his Objections, Petitioner disputes the Report’s finding that, even if the prosecutor’s

remarks were improper, Petitioner was required to show that the remarks rendered his entire trial

fundamentally unfair. (ECF No. 51 at 7-8.) According to Petitioner, the proper question was

whether the burden-shifting remarks violated his specific right to the presumption of innocence.

Ud.) But the remarks in question were not improper, so they did not violate Petitioner’s right to the

presumption of innocence. In any event, the Report correctly found that any prejudice from the

prosecutor’s comments was cured by the trial court’s instruction to the jury regarding the burden

of proof. See United States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992) (“[T]he prejudice from

the comments of a prosecutor which may result in a shifting of the burden of proof can be cured

by a court’s instruction regarding the burden of proof”); United States v. Fernandez, 553 F. App’x

927, 935 (11th Cir. 2014) (holding that even if the prosecutor’s remarks shifted the burden, the

defendant failed to establish prejudice because “[t]he district court instructed the jury that ‘the

defendant does not have to prove his or her innocence or produce any evidence at all’”).

Accordingly, Petitioner’s objection as to Claim Two is overruled.

D. Objection as to Claim Three

Petitioner objects to the Report’s rejection of his third claim, which alleged newly

discovered evidence in the form of a witness’s recantation. Petitioner contends that the Report

should have found that the state post-conviction court’s factual findings were unreasonable. (ECF

No. 51 at 9-11.) Petitioner contends that because the state court “found that [the witness’s]

recantation was ‘incredible,’” this finding “certainly casts doubt on the veracity of [his] trial

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testimony,” since this witness is “a demonstrated perjurer.” (/d. at 10-11.) In other words,

Petitioner appears to argue that if a witness’s recantation is incredible, it must mean, paradoxically,

that his recantation is credible because it shows that he is demonstrated perjurer” who lied under

oath at trial.4 This argument is fallacious for obvious reasons. As the Report pointed out, the state

court discredited the witness’s recantation based in part on the fact that the witness was an inmate

in the same facility as Petitioner. (ECF No. 45 at 36.) The recantation was also contradicted by

other witnesses’ testimonies and by physical evidence. (/d. at 37.) Moreover, even if this witness

had lied under oath at trial, it would not undermine the verdict because the witness merely testified

at trial that he did not see who shot the victim, and multiple eyewitnesses identified Petitioner as

the shooter. In sum, Petitioner’s objection as to Claim Three is overruled.

E. Objection as to Claim Five

In Claim Five, Petitioner alleged that his trial counsel was ineffective for failing to preserve

for appeal the claim of trial court error in sustaining the State’s objection to counsel’s voir dire

question about whether prospective jurors would find a witness credible if the witness was a

convicted felon. (ECF No. | at 27.) Petitioner contends that the state court’s denial of this claim

was an unreasonable application of Roe v. Flores-Ortega, 528 U.S. 470 (2000), because the state

court should have measured prejudice on whether the outcome of the appeal would have been

different, not on whether the outcome of the trial would have been different. (ECF No. 51 at 13.)

The Report correctly found that “[t]here is no Supreme Court case deciding whether

Stricklana’s prejudice analysis should focus on the trial—or on the appeal—when a petitioner

4 In fairness, Petitioner does not exactly claim that the state court should have found the

witness’s recantation credible. He insists that the state court should have focused instead on

“whether [the witness] perjured himself at trial.” (ECF No. 51 at 10.) But to obtain relief, Petitioner

must show that the witness’s recantation—in which he said he saw someone else shoot the

victim—was credible. Simply demonstrating that this witness lied at trial does little to help

Petitioner.

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claims that trial counsel performed deficiently by raising, but failing to preserve, an alleged error

that occurred during trial.” (ECF No. 45 at 44.) Flores-Ortega concerned a different issue: whether

counsel’s error caused the defendant to forfeit an appeal altogether. 528 U.S. at 483. As the Report

noted, the Eleventh Circuit expressly held that Flores-Ortega “did not address a situation such as

this one, where the issue was raised but not properly preserved. Thus, there is no clearly established

federal law by the Supreme Court specifically addressing whether the federal court should examine

the prejudice on appeal rather than at trial in a case like this one.” Carratelli v. Stepp, 382 F. App’x

829, 832 (11th Cir. 2010). In Carratelli, as here, the petitioner claimed “that his trial attorneys

were constitutionally ineffective for failing to properly preserve for appeal cause challenges to

jurors.” Jd. at 830. The Eleventh Circuit held that “the district court correctly affirmed the state

court decisions holding that the relevant prejudice inquiry should focus on trial, not the appeal,

under the facts presented in this case.” Jd. at 832. Thus, because Flores-Ortega did not “clearly

require the state court” to reach a different result, its ruling was not an unreasonable application

of clearly established federal law. Kernan vy. Cuero, 583 U.S. 1, 3 (2017) (emphasis in original).

Accordingly, Petitioner’s objection as to Claim Five is overruled.

F. Objection as to Claims Seven and Eight

In claims seven and eight, Petitioner alleged that his trial counsel was ineffective for not

requesting a Richardson hearing after the State failed to disclose changes in two witnesses’

testimonies about what Petitioner was wearing. (ECF No. | at 29-30.) Petitioner contends that the

state post-conviction court applied the wrong standard for Strickland prejudice in rejecting this

claim because “harmful error is presumed when a Richardson inquiry is not conducted.” (ECF No.

51 at 17 (quoting Acosta vy. State, 856 So.2d 1143, 1144-45 (Fla. 4th DCA 2003))). Petitioner is

incorrect; under Strickland, there is no presumption of prejudice in this context. United States v.

Cronic, 466 U.S. 648, 659 (1984) (holding that prejudice from counsel’s errors cannot be

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presumed except in three narrow circumstances); see also Florida v. Nixon, 543 U.S. 175, (2004)

(recognizing that Cronic’s presumption of prejudice is “reserved for situations in which counsel

has entirely failed to function as the client’s advocate.”). Thus, Petitioner must show a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. The cases on which Petitioner relies did not involve

ineffective-assistance claims; they involved direct appeals raising claims of trial court error for

failure to hold a Richardson hearing, in which a presumption of prejudice does apply. Here, the

Report correctly concurred with the state court’s finding that Petitioner failed to demonstrate

Strickland prejudice. Accordingly, Petitioner’s objection as to claims seven and eight is overruled.

G. Objection as to Claim Ten

In Claim Ten, Petitioner alleged that his appellate counsel was ineffective for failing to

raise the issue of the trial court’s failure to hold a Richardson hearing on the purported discovery

violations. As the Report cogently explained, appellate counsel was not ineffective for failing to

raise this issue because the trial court’s failure to hold a Richardson hearing in this case would not

have warranted reversal by the state appellate court. The failure to hold a Richardson hearing is

harmless error “only if the appellate court can say, beyond a reasonable doubt, that the defense

was not procedurally prejudiced by the discovery violation.” Brown v. State, 165 So.3d 726, 729

(Fla. 4th DCA 2015) (internal quotations and alterations omitted). Here, as the Report explained,

Petitioner was not procedurally prejudiced by the State’s failure to disclose changes in the

witness’s testimonies about Petitioner’s attire because defense counsel thoroughly cross-examined

the witnesses about these changes and “scrupulously and extensively” laid out the discrepancies

in their testimonies during closing argument. (ECF No. 45 at 47.) Petitioner claims he was

prejudiced because “had he known that these witnesses had changed their descriptions of the

shooter, he would have accepted the State’s 25-year plea offer.” (ECF No. 51 at 20.) But this claim

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is wholly speculative, and in fact, the inconsistencies in the witnesses’ testimonies strengthened

Petitioner’s defense because he was able to use these inconsistencies to undermine their credibility.

In any event, the issue of whether to hold a Richardson hearing is one of state law, and “although

the issue of ineffective assistance—even when based on the failure of counsel to raise a state law

claim—is one of constitutional dimension, [courts] must defer to the state’s construction of its own

law when the validity of the claim that appellate counsel failed to raise turns on state law.” Pinkney

y. Sec’y, Dep’t of Corr., 876 F.3d 1290, 1295 (11th Cir. 2017). Thus, this Court must defer to the

state court’s rejection of this claim. Accordingly, Petitioner’s objection as to claim ten is overruled.

H. Objection as to Claim Eleven

In his objection as to Claim Eleven, Petitioner merely rehashes an argument the Report

rejected. He again argues that the appellate court’s characterization of his appeal as “frivolous”

means it denied his claim on the merits. (ECF No. 51 at 22—23.) The Report addressed this, stating,

“even if the Fourth DCA added a merits determination by later describing Petitioner’s appeal as

frivolous, ‘where a state court has ruled in the alternative, addressing both the independent state

procedural ground and the merits of the federal claim, the federal court should apply the state

procedural bar and decline to reach the merits of the claim.’” (ECF No. 45 at 28 quoting Alderman

v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994))). Petitioner contends that “[t]he term ‘frivolous’ has

long been understood to mean ‘without merit.’”” (ECF No. 51 at 22.) But the state trial court order

Petitioner appealed denied his claim solely on procedural grounds. The fact that the appellate court

found this appeal to be without merit does not mean the appellate court rejected the underlying

claim on the merits. Rather, it means the appellate court found that any argument that the claim

was not procedurally barred was without merit. Petitioner has pointed to no authority supporting

his position that in stating his appeal was “frivolous,” the appellate court was reaching the merits

of the underlying claim. Accordingly, Petitioner’s objection as to Claim Eleven is overruled.

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III. CONCLUSION

Based on the foregoing, it is ORDERED AND ADJUDGED that:

1. Judge Maynard’s Report, (ECF No. 45), is AFFIRMED AND ADOPTED and

incorporated into this Order by reference.

2. The Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, (ECF No. 1), is DENIED.

3. No certificate of appealability shall issue.

4. All pending motions not otherwise ruled on are DENIED AS MOOT.

5. This case is CLOSED.

DONE AND ORDERED in Chambers at Miami, Florida, this G day of May, 2025.

C ya Ie

JOSE E./MARTINEZ

UNITEDSTATES DISTRICT JUDGE

Copies provided to:

All counsel of record

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