McKinnies v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WAYNE LAMAR MCKINNIES,

Petitioner,

v. Case No. 3:22-cv-542-MMH-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

AND FLORIDA ATTORNEY GENERAL,

Respondents.

_______________________________________

ORDER

I. Status

Petitioner Wayne Lamar McKinnies, an inmate of the Florida penal

system, initiated this action on May 11, 2022,1 by filing a Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 In the Petition,

McKinnies challenges two 2020 state court (Duval County, Florida) judgments

of conviction for burglary of a dwelling and possession of cannabis. He raises

three grounds for relief. See Petition at 5–9. Respondents submitted a

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

of Habeas Corpus (Response; Doc. 5). They also submitted exhibits. See Docs.

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

5-1 through 5-9. McKinnies filed a brief in reply. See Petitioner’s Reply to

Respondent Response to Petition for Writ of Habeas Corpus (Reply; Doc. 10).

This action is ripe for review.

II. Relevant Procedural History

On December 11, 2019, the State of Florida filed a second amended

information in McKinnies v. State, No. 2019-CF-2860 (Fla. 4th Cir. Ct.),

charging McKinnies with burglary of a dwelling (Count One) and possession of

less than twenty grams of cannabis (Count Two). Doc. 5-2 at 38. On December

12, 2019, a jury found McKinnies guilty of both charges. Id. at 64–65. On

February 5, 2020, the trial court sentenced him to a ten-year term of

imprisonment on Count One and a concurrent term of 329 days on Count Two,

with 329 days jail credit on both counts. Id. at 73–80.

On direct appeal, counsel for McKinnies filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967). Doc. 5-4. McKinnies subsequently filed a pro

se initial brief, arguing the trial court erred by denying McKinnies’s motion for

judgment of acquittal (ground one) and instructing the jury “with confusing,

misleading, and fundamentally defective jury instructions” (ground two). Doc.

5-6. The First District Court of Appeal (First DCA) per curiam affirmed

McKinnies’s convictions and sentences without a written opinion on October 7,

2020, Doc. 5-7 at 2–3, and issued the mandate on November 4, 2020, id. at 4.

McKinnies filed a pro se motion for postconviction relief pursuant to

Florida Rule of Criminal Procedure 3.850 on June 2, 2021. Doc. 5-8 at 5–18. In

his Rule 3.850 Motion, McKinnies argued the trial court erred in using

“incorrect jury instructions” which allowed him to be sentenced for a crime with

which he was not charged (claim one); trial counsel was ineffective for failing

to argue within his motion for judgment of acquittal that Count One was not

proven beyond a reasonable doubt (claim two); and trial counsel was ineffective

for failing to seek the exclusion of a sleeping juror (claim three). Id. at 9–16.

On July 15, 2021, the postconviction court denied relief on all grounds. Id. at

19–293. The First DCA per curiam affirmed the postconviction court’s denial

without a written opinion on March 16, 2022, Doc. 5-9 at 2–3, and issued the

mandate on April 13, 2022, id. at 4.

III. One-Year Limitations Period

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

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

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

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

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

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

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

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

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

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

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

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

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

Court. Because the Court can “adequately assess [McKinnies’s] claim[s]

without further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275

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

V. Governing Legal Principles

A. Standard of Review

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

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

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

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

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

ensure that federal habeas relief functions as a guard against extreme

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

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

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

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

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

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

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

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

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

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

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

unaccompanied by an explanation, the United States Supreme Court has

instructed:

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

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

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

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

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

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

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

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

relitigation of the claim unless the state court’s decision (1) “was contrary to,

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

determined by the Supreme Court of the United States;” or (2) “was based on

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

in the State court proceeding.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97–98.

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

§ 2254 as follows:

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

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

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

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

“contrary to” clause and an “unreasonable application”

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

“if the state court arrives at a conclusion opposite to

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

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

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

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies

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

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

claims of state courts’ erroneous factual

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

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

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The Supreme Court has not yet defined §

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

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

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

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

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

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

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

determination is not unreasonable merely because the

federal habeas court would have reached a different

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

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

301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

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

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

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

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

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

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

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

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

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

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

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

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

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

2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a

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

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

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

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

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

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

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

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

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

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

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

“‘“opportunity to pass upon and correct” alleged

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

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 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.

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

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

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

excused under certain circumstances. Notwithstanding that a claim has been

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

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

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

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

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (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

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

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

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

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

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

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

(11th Cir. 2001).

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

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

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

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

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. Custody

A district court only has jurisdiction to entertain a § 2254 petition if the

petitioner is “in custody pursuant to the judgment of a State court only on the

ground that he is in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a). To fulfill the “in custody”

requirement, “the habeas petitioner [must] be ‘in custody’ under the conviction

or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490

U.S. 488, 490–91 (1989). Generally, if the petitioner’s state sentence has fully

expired, he does not meet the “in custody” requirement. Id. at 492.

D. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

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

performance falls below an objective standard of reasonableness and thereby

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

curiam) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then

Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

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

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

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

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

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 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. The Eleventh Circuit has recognized “the absence of

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

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

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

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

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

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

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

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

697.

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

deference.

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

a most deferential one.” Richter, 562 U.S. at ---, 131 S.

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

application of Strickland was unreasonable under §

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

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

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

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

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable — a substantially

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

111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

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

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, 562 U.S. at ---, 131 S. Ct. at 788.

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

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

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

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

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

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

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

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

VI. Findings of Fact and Conclusions of Law

A. “In Custody” Requirement

In the Response, Respondents argue that McKinnies is not “in custody”

as it relates to his conviction for possession of less than twenty grams of

cannabis (Count Two) as he received time served on the conviction at

sentencing. Response at 17. In his Reply, McKinnies simply states he

“disagrees and states that he does satisfy the in ‘custody’ requirement.” Reply

at 3. The Court agrees with Respondents that McKinnies does not meet the “in

custody” requirement as to Count Two. On February 5, 2020, McKinnies was

sentenced to time served as to Count Two and thus his sentence was fully

expired as to that Count as of the time he filed his Petition. See Aquino v. Sec’y,

Dep’t of Corr., No. 8:21-cv-278-WFJ-SPF, 2024 WL 361094, *6, n.6 (M.D. Fla.

Jan. 31, 2024) (“When [petitioner] filed his § 2254 petition in 2021, he was not

‘in custody’ on the violation of a domestic injunction conviction because he

received a sentence of time-served on November 20, 2018, and, thus, his

sentence ‘fully expired’ on that date.”). Accordingly, the Court only has

jurisdiction to review this Petition as it relates to McKinnies’s conviction for

burglary to a dwelling (Count One).

B. Ground One

McKinnies contends the trial court erred in its jury instructions relating

to burglary in that the instructions did not comport with the charging

information. Petition at 5. According to McKinnies, this resulted in “a

conviction and sentence for a crime not charged in the [second] amended

information.” Id. In its Second Amended Information, the State charged

McKinnies with burglary as follows:

WAYNE LAMAR MCKINNIES on or

between March 9, 2019 and March 10,

2019, in the county of Duval and the State

of Florida, did unlawfully enter or remain

in a structure, to-wit: a dwelling, the

property of Gezim Sheno, with the intent

to commit an offense therein, to-wit: Theft,

contrary to the provisions of Section

810.02(3)(b), Florida Statutes.

Doc. 5-2 at 38. The trial court instructed the jury on the offense of burglary, in

relevant part, as follows:

To prove the crime of Burglary, the State must

prove the following two elements beyond a reasonable

doubt:

1. WAYNE LAMAR MCKINNIES

entered a structure owned by or in the

possession of Gezim Sheno.

2. At the time of entering the

structure, WAYNE LAMAR MCKINNIES

had the intent to commit an offense other

than burglary or trespass in that

structure.

You may infer that WAYNE LAMAR MCKINNIES

had the intent to commit a crime inside a structure if

the entering or attempted entering of the structure

was done stealthily and without the consent of the

owner or occupant.

The intent with which an act is done is an operation

of the mind and, therefore, is not always capable of

direct and positive proof. It may be established by

circumstantial evidence like any other fact in this

case.

Even though an unlawful entering or remaining in a

structure or conveyance is proved, if the evidence does

not establish that it was done with the intent to

commit an offense other than theft the defendant

must be found not guilty of burglary.

Proof of possession by an accused of property recently

stolen by means of a burglary, unless satisfactorily

explained, may justify a conviction of burglary if the

circumstances of the burglary and of the possession of

the stolen property convince you beyond a reasonable

doubt that the defendant committed the burglary.

Doc. 5-2 at 43. Neither party objected to this instruction as written or as read

to the jury. Doc. 5-3 at 242–43, 254, 320–21.

McKinnies raised a substantially similar claim on direct appeal, stating:

“Trial court committed per se reversible error when it instructed the jury with

confusing, misleading, and fundamentally defective jury instructions violating

[McKinnies’s] rights as secured by the 14th Amendment and Art. 1, Section 9

of the Florida Constitution.” Doc. 5-6 at 7, 12–14. Specifically, McKinnies

contends it was inappropriate to switch the words “done with the intent to

commit . . . [an offense other than burglary or trespass]” to “done with the

intent to commit an offense other than theft.” Id. at 13–14. Without requiring

a response from the State, the First DCA affirmed the appeal without written

opinion. Doc. 5-7.

McKinnies also raised a substantially similar claim in his Rule 3.850

Motion. Doc. 5-8 at 9–12. After quoting the language of the second amended

information and that of the jury instructions, the postconviction court

summarily denied relief, stating:

Claims of trial court error are not cognizable in

a Rule 3.850 motion for postconviction relief. See

McCrae v. State, 437 So. 2d 1388, 1390 (Fla. 1983)

(holding that a defendant generally may not raise a

claim of trial court error in a motion collaterally

attacking a judgment); Johnson v. State, 985 So. 2d

1215, 1215 (Fla. 1st DCA 2008) (a claim of trial court

error is not cognizable in a Rule 3.850 motion).

Moreover, even if Defendant had framed Ground One

as a claim of ineffective assistance of counsel, he would

still not be entitled to relief.

The State charged Defendant with burglary

based on his unlawful entrance into Gezim Sheno’s

property while having the criminal intent to commit

theft. This is precisely what burglary is: the unlawful

entering or remaining in a structure with the intent to

commit an offense therein. Wilkes v. State, 123 So. 3d

632, 636 (Fla. 4th DCA 2013). A charging document is

not required to specifically identify the crime the

defendant intended to commit. Morgan v. State, 198

So. 3d 812, 818 (Fla. 2d DCA 2016) (“It is well settled

that the State is not required to specify the intended

offense for burglary in its charging document and that

a charging document tracking the language of the

burglary statute will generally be sufficient.”).

Nevertheless here, the State’s charging information

identified theft as the intended predicate offense. In

sum, there are no defects in the charging information.

The trial court’s jury instructions reflected the

standard jury instructions. See In re Standard Jury

Instructions in Criminal Cases, 109 So. 3d 721, 723-25

(Fla. 2013); see also Stephens v. State, 787 So. 2d 747,

755 (Fla. 2001) (“The standard jury instructions are

presumed correct and are preferred over special

instructions.”). The only error in the instructions

occurred when the trial court substituted the word

“theft” for “burglary” in the section about unlawful

entering:

Even though an unlawful entering or

remaining in a structure or conveyance is

proved, if the evidence does not establish

that it was done with the intent to commit

an offense other than theft, the defendant

must be found not guilty of burglary.

(emphasis added).

The trial court should not have said the

emphasized portion of the instruction quoted above.

See In re Standard Jury Instructions in Criminal

Cases, 109 So. 3d at 725 (“Even though an unlawful

[entering] [remaining in] a [structure] [conveyance] is

proved, if the evidence does not establish that it was

done with the intent to commit [(the crime alleged)]

[an offense other than burglary or trespass], the

defendant must be found not guilty of burglary.”). In

relevant part, the court should have said either (a)

“done with the intent to commit theft” or (b) “done with

the intent to commit an offense other than burglary or

trespass.” However, there is no reasonable probability

that this portion of the instruction resulted in the jury

finding Defendant guilty as charged. If anything, the

error benefitted Defendant because, when taken in

isolation, the quoted instruction provides that theft

cannot serve as the underlying intended offense

necessary to sustain a burglary conviction.

Furthermore, the other portions of the trial court’s

burglary instruction – which were in all ways correct

– cured the lone error. See Freeman v. State, 787 So.

2d 152 (Fla. 4th DCA 2001); Padilla v. State, 212 So.

3d 491 (Fla. 2d DCA 2017). For these reasons, the

Court denies Ground One of Defendant’s motion.

Doc. 5-8 at 23–25 (internal record citations omitted). The First DCA per curiam

affirmed the postconviction court’s denial of relief without a written opinion.

Doc. 5-9.

While Respondents acknowledge that McKinnies raised this argument

before the state appellate court through his direct appeal and the state trial

court through his Rule 3.850 Motion, they nevertheless assert that the claim

is unexhausted. Response at 19–25. Essentially, Respondents argue that the

appellate court’s adjudication did not reach the merits of this issue because

counsel did not make a specific objection at trial, and that under Florida law,

it was subject to review by the First DCA only for fundamental error. Id. at 19–

21. Further, they suggest that because the postconviction court denied the

claim, citing case law that trial court error is not cognizable in a Rule 3.850

motion, and only addressed the merits of an ineffective assistance of counsel

claim in the alternative, the claim in unexhausted. Id. at 24–25 (citing Davis

v. Singletary, 119 F.3d 1471, 1479 (11th Cir. 1997) (“It is settled that once the

state courts have ignored any procedural bar and rejected a claim on the merits

– not in the alternative but as the only basis of decision – that claim is not

barred from federal habeas review.). McKinnies responds by arguing that the

error was fundamental and, thus, he is entitled to review of the state appellate

court’s review of that argument. Reply at 7–8.

Under Florida law, a jury instruction error can be challenged even

without a contemporaneous objection if the error amounts to fundamental

error. See Archer v. State, 673 So. 2d 17, 20 (Fla. 1996) (confirming jury

instruction claims are subject to contemporaneous objection rule and

fundamental error analysis). On appeal, McKinnies specifically argued that

the instructions were “fundamentally” defective. See Doc. 5-6 at 7, 12–14.

Considering this principle, and because the First DCA affirmed McKinnies’s

convictions and sentences without stating the basis for its affirmance,

Respondents’ procedural default argument fails. See Parker v. Sec’y, Dep’t of

Corr., 331 F.3d 764, 772–73 (11th Cir. 2003), abrogated on other grounds by,

Parker v. United States, 993 F.3d 1257 (11th Cir. 2021).

Given the procedural history, the appellate court may have affirmed

McKinnies’s convictions and sentences on the merits. If the First DCA

addressed the merits, this adjudication is entitled to deference under AEDPA.

After a review of the record and the applicable law, the Court concludes that

the state court’s adjudication of this claim was not contrary to clearly

established federal law and did not involve an unreasonable application of

clearly established federal law. Nor was the state court’s adjudication based on

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

in the state court proceedings. Accordingly, McKinnies is not entitled to relief

on the basis of this claim.

Nevertheless, if the state court’s adjudication is not entitled to deference,

McKinnies’s claim still fails. “The fact that [a jury] instruction was allegedly

incorrect under state law is not a basis for habeas relief.” Estelle v. McGuire,

502 U.S. 62, 71–72 (1991). Such an error only warrants relief if the “the ailing

instruction by itself so infected the entire trial that the resulting conviction

violates due process.” Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147

(1973)). To make that determination, the instruction “must be considered in

the context of the instructions as a whole and the trial record.” Id. “[I]n

reviewing an ambiguous instruction . . . we inquire ‘whether there is a

reasonable likelihood that the jury has applied the challenged instruction in a

way’ that violates the Constitution.” Id. (quoting Boyde v. California, 494 U.S.

370, 380 (1990).

Here, the trial court’s instruction was consistent with the standard jury

instruction in all other respects. Importantly, prior to the flawed instruction,

the court instructed the jury that, to find McKinnies guilty of burglary, it must

find that: “At the time of entering the structure, [McKinnies] had the intent to

commit an offense other than burglary or trespass in that structure.” Doc. 5-2

at 43. Moreover, the requirement that McKinnies had the intent to commit an

offense other than burglary or trespass was addressed as early as the State’s

opening statement and within both parties’ closing statements. Doc. 5-3 at 159,

277, 286, 295. Indeed, the arguments reflect that the State’s case was designed

to show McKinnies entered the dwelling with the intent to commit a theft. Id.

at 159, 277, 286–87, 288, 290, 295, 296, 300. Thus, considering the context of

the instruction as a whole as well as the trial record, there is no reasonable

likelihood that the jury applied the challenged instruction in a way that

violated the Constitution. Accordingly, McKinnies is not entitled to federal

habeas relief as to Ground One.

C. Ground Two

McKinnies alleges counsel was ineffective for failing to raise the “beyond

a reasonable doubt” standard in support of his motion for judgment of

acquittal. Petition at 7. According to McKinnies, the evidence against him was

“highly circumstantial” and met a preponderance of the evidence standard “at

best,” not a beyond a reasonable doubt standard, and that had counsel argued

such, there is a reasonable probability the result of the proceedings would have

been different. Id.

McKinnies raised this issue in ground two of his Rule 3.850 motion. Doc.

5-8 at 12–14. The postconviction court first summarized the evidence presented

at McKinnies’s trial:

Gezim Sheno moved to the United States from

Albania in 1992. He resides in the Riverside section of

Jacksonville[,] and he owns approximately nine

residential rental properties in the area. One such

property is located at 2670 Gilmore Street. In March

2019, the house had been vacant for several months

while Sheno renovated the kitchen. As part of the

renovation, Sheno installed new cabinets and

appliances. Someone burglarized the property in early

March 2019, which prompted Sheno to install a

surveillance camera on a tree near the house. When

the camera’s sensor detected motion, it would

automatically take surveillance photographs.

Sheno inspected the property on March 9th and

found it to be in order. However, when he returned the

following day, Sheno discovered that someone had

burglarized the property. The burglar had damaged

the back door and some of the kitchen cabinets. The

microwave was missing. From his surveillance

camera, Sheno retrieved numerous photos of the

person he believed committed the burglary. The

pictures show a man walking back and forth outside

the house while pushing a cart that contained a

microwave.

Robert Kinder, a patrol officer with the

Jacksonville Sheriff’s Office (JSO), was the first officer

to respond to the scene. Sheno showed Officer Kinder

the photos captured by his surveillance camera and

the damage inside the home. While it was possible the

burglar could have kicked open the door, Officer

Kinder suspected the burglar would have more likely

needed a tool to open it. Officer Kinder observed that

someone had pushed over the fence that separated

Sheno’s property from the adjacent lot.

Officer Kinder asked for an evidence technician

to evaluate the scene and JSO detective John Matzen

responded. Detective Matzen reviewed the property

damage and the surveillance photos, but he did not

check for fingerprints because the suspect in the

surveillance photos wore socks on his hands.

Jane Doe6 is a member of the JSO burglary task

unit. On March 12, 2019, Officer Doe went to the

Riverside area to search for the burglar. During her

investigation, she encountered Comadore Perry, a

retired Navy officer who has been employed as a letter

carrier with the United States Postal Service since

2012. Perry delivers mail in the Riverside area.

Because he walks his route, he interacts with area

residents and is familiar with the neighborhood.

Officer Doe showed Perry the surveillance photo from

the crime scene and asked Perry if he recognized the

man in the picture. Perry identified the man as

6 The actual name of this officer has been redacted in the postconviction court’s

order and corresponding transcript. For ease of reading, the Court will refer to her as

Officer Jane Doe.

someone he regularly saw walking by the railroad

track near King Street between 10:00 and 11:00 AM.

Perry noticed the man in that area nearly every day

over the previous couple of months; however, he did

not know the man’s name or where he lived or worked.

On March 13th, Officer Doe and her partner

stationed themselves at the location where Perry

regularly observed the suspect. Officer Doe and her

partner were wearing plain clothes and they were

seated in an unmarked vehicle. At 10:15 AM, they

observed Defendant – who appeared to be the man in

the surveillance photos – walk by the railroad tracks.

Officer Doe particularly noticed that Defendant wore

large brown boots and had tattoos on his left arm

because those features were consistent with the man

in the surveillance photos. A marked JSO patrol car

stopped Defendant. During a search incident to

arresting Defendant, officers found marijuana in his

pocket.

Defendant testified. In March 2019, Defendant

was unemployed and would make money by collecting

window frames, aluminum cans, copper, and other

materials from neighborhood trash piles. He would

search for properties that appeared to be vacant,

unless the property displayed a no trespassing sign.

He would use a cart to transport the items. Defendant

admitted that he took window frames and a microwave

from Sheno’s property. Defendant alleged he found the

items in the property’s backyard without entering the

house. He conceded that he was the man in the

surveillance photos. He also conceded that he entered

the property’s yard through its fence and he

acknowledged that he was the lone person depicted in

the photos taken by the motion-activated surveillance

camera.

Doc. 5-8 at 20–23 (internal record citations omitted and footnote added).

Having summarized the evidence presented against McKinnies, the

postconviction court denied relief, stating:

In Ground Two, Defendant avers that Defense

Counsel was ineffective because he failed to cite the

“beyond a reasonable doubt” standard in support of his

motion for a judgment of acquittal. Defendant

maintains the State failed to prove that he entered the

dwelling in Count One. He believes that if only

Defense Counsel had specifically built his argument

on the “beyond a reasonable doubt” evidentiary

standard, the trial court would have granted the JOA

motion.

“The purpose of a motion for judgment of

acquittal is to challenge the legal sufficiency of the

evidence . . . .” Cunningham v. State, 385 So. 2d 721,

722 (Fla. 3d DCA 1980). In moving for a judgment of

acquittal, a defendant admits not only the facts stated

in the evidence, but also every reasonable conclusion

favorable to the State that the fact-finder might fairly

infer from the evidence.” State v. Odom, 56 So. 3d 46,

49 (Fla. 5th DCA 2011). “The trial court should not

grant a motion for judgment of acquittal unless there

is no view of the evidence which the jury might take

favorable to the opposite party that can be sustained

under the law.” McBride v. State, 7 So. 3d 1146, 1148

(Fla. 2d DCA 2009) (emphasis added and internal

quotations omitted). Here, Defense Counsel moved for

a judgment of acquittal at the close of the State’s

evidence and again at the close of the Defense’s

evidence. In each instance, Defense Counsel

summarized the State’s evidence and argued it was

legally insufficient to support Defendant’s convictions.

The trial court denied Defense Counsel’s motions.

Thus, the record shows that Defense Counsel

tailored his arguments to the correct legal standard.

Moreover, in light of the substantial evidence of

Defendant’s guilt, there is no reasonable probability

the trial court would have granted the JOA motion,

regardless of how specifically or ardently Defense

Counsel argued in favor of it. Accordingly, the Court

denies Ground Two of the Defendant’s motion.

Doc. 5-8 at 26 (internal record citations omitted). The First DCA per curiam

affirmed the denial of relief without a written opinion. Doc. 5-9.

To the extent that the appellate court decided McKinnies’s claim on the

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

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

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

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

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

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

evidence presented in the state court proceedings. Thus, McKinnies is not

entitled to relief on the basis of the claim.

However, assuming arguendo that the appellate court’s adjudication of

the claim is not entitled to deference, McKinnies’s claim does not have merit.

Trial counsel made the following argument in support of his motion for

judgment of acquittal after the presentation of the State’s case:

Your Honor, at this time the Defense would make a

motion for judgment of acquittal for the State’s failure

to prove a prima facie case. Even in [the] light most

favorable to them, the State did not prove an essential

element of burglary.

There was no testimony that Mr. McKinnies ever

entered the structure. There was no physical photo

evidence that he ever entered the structure. There is

no DNA evidence that he entered the structure. None

of the cops had any indications that he was the one

who entered the structure.

So we are asking for a judgment of acquittal based on

the failure of the State to provide a crucial element of

the crime of burglary.

. . .

There’s also not -- I also, in another avenue, do not

believe that they proved that he had an intent to

commit a crime therein other than trespassing.

Doc. 5-8 at 143–44. After the defense rested, trial counsel presented a renewed

motion for judgment of acquittal, arguing:

Your Honor, the Defense would renew their motion for

a judgment of acquittal based on the fact that even in

the light most favorable to the State, they did not

prove a prima facie case.

When it comes to burglary, they did not prove, even in

the most favorable light, the necessary element that

he entered the structure. There is no evidence that

anyone entered the home -- or that this defendant

entered the home, I mean.

Your Honor, there are no eyewitnesses. There’s no

DNA data, not even any pictures that they have

showing him entering. All you can see is steps, which

they claim is the side of the house.

And at the time of entering the structure, an element

too, that he had the intent to commit an offense, while

they can infer criminal intent, if he was -- if it was

taken stealthily -- none of these actions were done

stealthily. It was in broad daylight. Face wasn’t

covered. His arms and legs weren’t covered. He didn’t

have a hat or hoodie or anything -- nothing was -- he

wasn’t trying to conceal himself in any way.

And, honestly, when you take those two things into

account with the testimony that’s been given, the most

that the State has been able to prove here would be a

trespass.

Id. at 184–85.

To prove burglary under Florida law, the State must prove that a

defendant: (1) entered a dwelling, structure, or a conveyance, and (2) had the

intent to commit an offense therein. § 810.02(1)(b), Fla. Stat. Moreover, under

Florida law,

A defendant, in moving for a judgment of acquittal,

admits not only the facts stated in the evidence

adduced, but also admits every conclusion favorable to

the adverse party that a jury might fairly and

reasonably infer from the evidence. The courts should

not grant a motion for judgment of acquittal unless the

evidence is such that no view which the jury may

lawfully take of it favorable to the opposite party can

be sustained under the law.

Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974).

Here, counsel used the correct standard for arguing his motions for

judgment of acquittal and, thus, was not deficient simply for not stating the

beyond a reasonable doubt standard. Further, considering the evidence

presented at trial, McKinnies cannot show prejudice. The owner of the

dwelling testified during this trial that he was at the property the day before

the burglary and witnessed nothing out of the ordinary: the door was intact,

and the microwave was inside the house. Doc. 5-8 at 77, 83. The owner

testified that on March 10, 2019, he went to the property to find the door

“destroyed,” the kitchen “broken,” and the microwave missing, as corroborated

by responding police officers. Id. at 77–78, 80–82, 88, 89, 96, 99-100, 101, 104–

05, 106, 107. The owner had placed a trail camera in a tree adjacent to the

house after a previous robbery, and after this incident, he pulled photographs

of an individual with socks on their hands leaving the house with the

microwave on a cart. Id. at 78–79, 83–85, 90, 97, 105. The neighborhood letter

carrier recognized the man in the photographs as someone who he would see

walking near the railroad tracks at King and Gilmore Streets, nearby the

dwelling in question, generally between 10-11 A.M. Id. at 114–15, 116–17,

126–27. Following this lead, officers conducted surveillance in that area the

following day and were able to locate McKinnies. Id. at 127, 130, 140. Officer

Doe testified McKinnies appeared to be the individual in the surveillance

photograph that she had to compare likenesses. Id. at 127, 138. Officer Doe

noted that McKinnies had tattoos on his left arm like the individual in the

picture, and he wore similar clothing and boots as the individual in the

photograph. Id. at 127, 128–29, 134, 136–37, 139. Additionally, McKinnies

testified. He stated he was unemployed and would sell things to the scrap yard

for money. Id. at 169–170. He admitted that he was the individual in the

surveillance photograph, but said he only took a microwave from a trash pile

and never entered the dwelling. Id. at 172–73, 174, 175–77, 182. Considering

this evidence with every inference favorable to the State, there is no

reasonable probability even a more artfully argued motion for judgment of

acquittal would have been granted. McKinnies is thus not entitled to federal

habeas relief on the basis of this claim.

D. Ground Three

Lastly, McKinnies asserts counsel was ineffective for failing to object to

the presence of a sleeping juror. Petition at 8. McKinnies states he informed

counsel that the juror was nodding and closing his eyes, but that counsel

dismissed his concerns and did not object or move to replace the sleeping juror.

Id. McKinnies avers that had counsel objected, there is a reasonable

probability the result of the proceeding would have been different. Id.

McKinnies raised this issue in ground three of his Rule 3.850 motion.

Doc. 5-8 at 15–16. The postconviction court denied relief on this claim, stating:

In Ground Three, Defendant argues Defense

Counsel should have asked the trial court to replace

one of the jurors. Defendant claims the unnamed juror

was “nodding off” during portions of Gezim Sheno’s

testimony. Defendant alleges he brought this issue to

Defense Counsel’s attention during Sheno’s testimony,

but that Defense Counsel refused to do anything about

it. Defendant does not contend that the juror missed

Defendant’s testimony (or the testimony of any

witnesses aside from Sheno).

First, the record belies Defendant’s allegation.

At the outset of his closing argument to the jury,

Defense Counsel specifically noted that the jury had

been engaged throughout Defendant’s trial:

MR. MILLIGAN: Good afternoon, ladies

and gentlemen. First of all, I would just

like to thank you for the time -- for

everyone’s participation in today’s events

here today. I asked in jury selection if y’all

would be attentive to not only the State

but to our side as well, and everyone was

paying good attention and taking good

notes. So I thank you for taking it

seriously. This is a serious matter.

(emphasis added).

Defense Counsel could not have made that

statement in good faith if, as Defendant now contends,

a member of the jury was nodding off during portions

of Sheno’s testimony. See R. Regulating Fla. Bar. 4-3.3

(duty of candor). And even if the court were to accept

Defendant’s allegations arguendo, Defendant cannot

establish the prejudice that Strickland demands.

To demonstrate prejudice under Strickland,

Defendant needs to show that if only Defense Counsel

had successfully moved to replace the juror in

question, there is a reasonable probability that

ultimate outcome of Defendant’s trial would have

changed. Stated differently, Defendant must show

there is a reasonable probability that the juror’s

“nodding off” ultimately resulted in the jury finding

Defendant guilty. The record shows Defendant cannot

carry that burden.

Defendant alleges that a juror nodded off during

portions of Sheno’s testimony. The record shows that

Sheno’s testimony was thoroughly inculpatory to

Defendant. Indeed, it was during Sheno’s testimony

that the State presented some of its weightiest

evidence of Defendant’s guilt: surveillance

photographs from Sheno’s security camera that

captured Defendant at the crime scene during the time

in question. In light of the incriminating nature of

Sheno’s testimony, Defendant may well have benefited

if one of the jurors nodded off during that portion of

the trial. Certainly, Defendant cannot demonstrate

that a juror missing portions of Sheno’s incriminating

testimony somehow reduced the likelihood of an

acquittal.

Defendant’s claim rests o[n] this sequence of

but-for inferences: (1) if only Defense Counsel had

made the appropriate motion, the trial court would

have actually removed the sleeping juror and replaced

him or her with an alternate and (2) the presence of

the alternate juror in the deliberation room would

have changed the ultimate result of Defendant’s trial.

However, the overwhelming evidence of Defendant’s

guilt renders this scenario implausible. See Maharaj

v. State, 778 So. 2d 944, 951 (Fla. 2000)

(“Postconviction relief cannot be based on speculation

or possibility.”). Indeed, even if the court held an

evidentiary hearing on Ground Three and Defense

Counsel admitted (a) that he knew one of the jurors

was nodding off during Sheno’s testimony and (b) that

he had no legitimate strategic reason for failing to

bring the issue to the trial court’s attention, there

would still be no basis for awarding postconviction

relief. See Strickland, 466 U.S. at 688 (to prevail on a

claim of ineffective assistance of counsel, the

defendant must show there is a reasonable probability

that his lawyer’s deficient performance changed the

ultimate outcome of his trial). For these reasons, the

Court denies Ground Three of Defendant’s motion.

Doc. 5-8 at 27–28 (internal record citations omitted). The First DCA per curiam

affirmed the denial of relief without a written opinion. Doc. 5-9.

To the extent that the appellate court decided this claim on the merits,

the Court will address the claim in accordance with the deferential standard

for federal court review of state court adjudications. After a review of the record

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

of the claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts considering the evidence

presented in the state court proceedings. Thus, McKinnies is not entitled to

relief on the basis of the claim.

Even assuming arguendo that the appellate court’s adjudication of the

claim is not entitled to deference, the claim does not have merit. Considering

McKinnies’s allegations in conjunction with the record, he cannot show

prejudice. McKinnies only asserts he witnessed the juror “nodding off” during

Sheno’s testimony. McKinnies does not identify any allegedly exculpatory

testimony from Sheno, which may have caused the allegedly sleeping juror to

find him not guilty. Rather, as noted by the postconviction court, Sheno’s

testimony was the most incriminating evidence of the State’s case. It was

during Sheno’s testimony that the State introduced testimony that, the day

prior to the burglary, the new microwave was inside the property and the

property was not in the damaged condition it was post-burglary. It was also

during Sheno’s testimony that the State introduced the surveillance pictures

showing McKinnies hauling the microwave away from the house, wearing

socks on his hands. For these reasons, McKinnies cannot show prejudice and

is thus not entitled to federal habeas relief on this basis. See Ward, 592 F.3d

at 1163 (stating “a court need not address the performance prong if the

petitioner cannot meet the prejudice prong”).

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If McKinnies seeks issuance of a certificate of appealability, the

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

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

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

2253(c)(2). To make this substantial showing, McKinnies “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)).

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

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

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

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

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

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

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

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

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

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

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

WITH PREJUDICE.

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

and dismissing this case with prejudice.

3. The Clerk of the Court is directed to update McKinnies’s address

to Okaloosa Work Camp, 3189 Colonel Greg Malloy Road, Crestview, Florida

32539.

4. If McKinnies appeals the denial of the Petition, the Court denies a

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

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

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

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

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

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 17th day of

June, 2025.

MARCIA MORALES HOWARD

United States District Judge

JaxP-12

C: Wayne Lamar McKinnies, #158148

Counsel of record

37