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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LADON MAURICE GREEN,

Petitioner,

v. Case No. 3:20-cv-610-BJD-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

and FLORIDA ATTORNEY GENERAL,

Respondents.

_____________________________________

ORDER

I. STATUS

Petitioner, LaDon Maurice Green (Green), an inmate of the Florida penal

system, initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254

for Writ of Habeas Corpus by a Person in State Custody (Doc. 1; Petition). The

Petition, as amended, raises seven grounds for relief. Docs. 1, 28-2.

Respondents have responded to the Petition (Docs. 6, 37; Response),1 and

1 Exhibits A through LLL are attached to Doc. 6, Exhibits MMM through

KKKK are attached to Doc. 33, and Exhibit LLLL is attached to Doc. 37. For purposes

of reference to pleadings and exhibits, the Court will cite the document numbers and

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

Green has replied to their Response (Docs. 8, 42; Reply). Upon review, no

evidentiary proceedings are warranted in this Court.2

II. STANDARD OF REVIEW

A. Standard Under AEDPA

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 Corrs., 828 F.3d 1277, 1285 (11th Cir. 2016). The

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 Corrs., 834 F.3d

1299, 1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corrs., 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.

state court need not issue an 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:

[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. 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, 584 U.S. 122, 125–26 (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 fair[-]minded jurists could disagree on the

correctness of the state court’s decision.” Harrington, 562 U.S. at

101 (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

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 do so, he 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 their claims, “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),

thereby alerting the appropriate state court of “the federal nature of the

claim[s],” Baldwin v. Reese, 541 U.S. 27, 29 (2004). 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.”).

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. Under the doctrine of procedural default:

[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 v. Thompson, 501 U.S. 722, 747–748 (1991); Wainwright

v. Sykes, 433 U.S. 72, 84–85 (1977). 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. 307, 316 (2011);

Beard v. Kindler, 558 U.S. 53, 60–61 (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.

Martinez v. Ryan, 566 U.S. 1, 9–10 (2012) (internal citations modified).

“To show cause, the petitioner must demonstrate ‘some objective factor

external to the defense’ that impeded his effort to raise the claim properly in

state court.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (quoting

Murray v. Carrier, 477 U.S. 478, 488 (1986)). Once cause is established, “the

petitioner also must show actual prejudice from the alleged constitutional

violation.” Id. (citing Sykes, 433 U.S. at 84). “[I]n order to show prejudice, a

petitioner must demonstrate that ‘the errors at trial actually and substantially

disadvantaged his defense so that he was denied fundamental fairness.’” Id.

(quoting McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992)).

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

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

show that a fundamental miscarriage of justice would occur. As explained by

the Eleventh Circuit:

“[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. “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 (internal citations modified). “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, 256 F.3d at

1171 (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 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) (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 that:

(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. As explained in Richter:

To establish deficient performance, a person challenging a

conviction must show that “counsel’s representation fell below an

objective standard of reasonableness.” 466 U.S. at 688. 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. 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.

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. It is not enough “to show

that the errors had some conceivable effect on the outcome of the

proceeding.” Id. at 693. 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.

Richter, 562 U.S. at 104 (internal citations modified).

Notably, there is no “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.” 466 U.S. at 697.

“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 (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 Corrs., 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 Corrs., 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. PERTINENT FACTS AND PROCEDURAL HISTORY3

On November 26, 2012, the State of Florida filed an amended

information charging Green with armed robbery with a deadly weapon while

wearing a hood, mask, or other device that concealed his identity, based on

events that occurred on October 10, 2011.4 Doc. 6-1 at 27, 131. Green elected

to represent himself, with stand-by counsel, starting at his arraignment on the

original information on August 16, 20125 until his sentencing on March 14,

3 The Court takes judicial notice of Green’s state court dockets. See McDowell

Bey v. Vega, 588 F. App’x 923, 926 (11th Cir. 2014) (stating that a district court may

consider the contents of a publicly available docket sheet of plaintiff’s criminal case).

4 Some of Green’s filings pertaining to Duval County Circuit Court case number

2012-CF-7413 are omitted from this Order as irrelevant to the issues before the

Court. Similarly, Green’s filings in the Calhoun County Circuit Court and any related

appeals or petitions are also omitted from this Order.

5 At the arraignment, the trial court held a hearing pursuant to Nelson v. State,

274 So.2d 256 (Fla. 4th DCA 1973), and Faretta v. California, 422 U.S. 806 (1975),

and found Green was competent to waive the right to counsel, and his waiver was

knowing and intelligent. See Doc. 6-1 at 162–78.

2013. See Doc. 6-1 at 159–81, 481–536, 550–72; Doc. 6-2; Doc. 6-3; Doc. 6-4;

Doc. 6-5 at 3–180.

After Green’s first jury trial on December 3–5, 2012, the trial court

declared a mistrial. See Doc. 6-2 at 3–203; Doc. 6-3 at 3–218. After his second

jury trial on January 28–31, 2013, the trial court adjudicated him guilty of

robbery, as charged in the amended information, based on the jury’s findings

that he “carried a weapon, that was not a deadly weapon, during the

commission of the offense” and that he “did wear a hood, mask, or other device

during the commission of the offense.” Doc. 6-1 at 340; Doc. 6-4; Doc. 6-5 at 9–

181. On March 21, 2013, the trial court sentenced Green to life in prison as a

Habitual Felony Offender (HFO), with a 30-year minimum mandatory

sentence as a Prison Releasee Reoffender (PRR). Doc. 6-1 at 402–08, 600–01.

On April 19, 2013, through counsel, Green appealed his judgment and

sentence to the First District Court of Appeal of Florida (First DCA). Doc. 6-1

at 445. On March 27, 2014, the First DCA per curiam affirmed the judgment

without a written opinion in Green v. State, 139 So. 3d 303 (Fla. 1st DCA 2014)

(1D13-1871), denied Green’s pro se motion for rehearing or reconsideration on

May 30, 2014, and issued the mandate on June 25, 2014. Doc. 6-5 at 262, 264–

81, 283–84; Doc. 6-6 at 240.

On July 8, 2014, Green filed a pro se petition for writ of prohibition,

which he amended on August 5, 2014 and September 11, 2014, seeking to

restrain Circuit Judge Mallory Cooper from presiding in his post-conviction

proceedings. Doc. 6-6 at 2–5, 20–23, 39–42. On October 6, 2014, the First DCA

per curiam denied the petition “on the merits,” without an explanation, in

Green v. State, 151 So. 3d 1235 (table) (Fla. 1st DCA 2014) (1D14-3123). Doc.

6-6 at 59. On October 22, 2014, Green filed a pro se motion for rehearing,

clarification, certification, and written opinion, which the First DCA denied on

November 19, 2014. Doc. 6-6 at 61–65.

On September 5, 2014, Green filed a pro se petition for writ of habeas

corpus, alleging ineffective assistance of appellate counsel, which the First

DCA per curiam denied “on the merits,” without an explanation, on October 6,

2014, in Green v. State, 150 So. 3d 259 (Fla. 1st DCA 2014) (1D14-4080). Doc.

6-6 at 67–85, 113, 115; Doc. 6-8 at 47. On October 20, 2014, Green filed a pro

se motion for rehearing, rehearing en banc, certification, clarification, and

written opinion, which the First DCA denied on November 19, 2014. Doc. 6-6

at 117–26.

On April 21, 2015, Green filed a pro se petition for writ of habeas corpus,

which the First DCA per curiam dismissed on May 27, 2015, pursuant to Baker

v. State, 878 So. 2d 1236 (Fla. 2004)6 and Fla. R. App. P. 9.141(c)(6)(C), in Green

6 In Baker, the Florida Supreme Court held that “[t]he remedy of habeas corpus

is not available in Florida to obtain the kind of collateral postconviction relief

available by motion in the sentencing court pursuant to rule 3.850,” and that the

court would start dismissing as unauthorized:

v. Jones, 167 So. 3d 477 (Fla. 1st DCA 2015) (1D15-1916). Doc. 6-6 at 207–13,

257. On June 11, 2015, Green filed a pro se motion for rehearing and

clarification, which the First DCA denied on July 10, 2015. Id. at 259–63.

On April 29, 2015, Green filed a pro se motion for post-conviction relief

under Florida Rule of Criminal Procedure 3.850, which he supplemented on

June 25, 2015 and September 10, 2015. Doc. 6-7 at 47–79, 88–91. On August

25, 2016, the trial court summarily denied Green’s Rule 3.850 motions. Id. at

229–42. Green filed a motion for rehearing and/or reconsideration on August

31, 2016 and a necessary addendum on November 14, 2016, which the trial

court denied on November 16, 2016. Id. at 399–404, 422–23, 424–27. On May

31, 2017, the First DCA per curiam affirmed the denial without a written

opinion in Green v. State, 226 So. 3d 816 (table) (Fla. 1st DCA 2017) (1D17-

0059). Doc. 6-8 at 60. On June 9, 2017, Green filed a pro se motion for rehearing

and disposition, which the First DCA denied on September 14, 2017. Id. at 62–

habeas corpus petitions filed by noncapital defendants that seek the

kind of collateral postconviction relief available through a motion filed

in the sentencing court, and which (1) would be untimely if considered

as a motion for postconviction relief under rule 3.850, (2) raise claims

that could have been raised at trial or, if properly preserved, on direct

appeal of the judgment and sentence, or (3) would be considered a second

or successive motion under rule 3.850 that either fails to allege new or

different grounds for relief, or alleges new or different grounds for relief

that were known or should have been known at the time the first motion

was filed.

878 So. 2d at 1245–46.

69, 84. On September 21, 2017, Green filed a pro se motion for the court to take

judicial notice and motion for rehearing en banc and written opinion, which

the First DCA denied on January 12, 2018, and issued the mandate on

February 2, 2018. Id. at 85–92, 94.

On July 8, 2015 and November 28, 2016, respectively, Green filed pro se

petitions for writ of habeas corpus, which the trial court denied on January 27,

2017. Id. at 99–112, 150–64, 181–83. On February 13, 2017, Green filed a

motion for rehearing, which the trial court denied on March 18, 2017. Id. at

223–25, 230–31. On August 25, 2017, the First DCA per curiam affirmed the

denial without a written opinion in Green v. Jones, 233 So. 3d 1027 (Fla. 1st

DCA 2017) (1D17-0581), and issued the mandate on September 22, 2017. Doc.

6-8 at 229, 233–38; Doc. 6-9 at 2–13, 15–24, 39–41.

On January 11, 2016, Green filed a pro se petition for writ of habeas

corpus, which the Florida Supreme Court dismissed as unauthorized pursuant

to Baker, in Green v. Jones, 2016 WL 743834 (Fla. Feb. 24, 2016) (SC16-0113),

and stated it would not entertain any motion for rehearing or reinstatement.

Doc. 6-6 at 155–70, 205.

On January 25, 2016, Green filed a pro se petition for writ of habeas

corpus, alleging ineffective assistance of appellate counsel, which the First

DCA per curiam dismissed as successive, pursuant to Morris v. State, 134 So.

3d 1066 (Fla. 4th DCA 2013), in Green v. State, 187 So. 3d 889 (Fla. 1st DCA

Feb. 26, 2016) (1D16-0323). Doc. 6-7 at 2–8, 36. On March 14, 2016, Green filed

a motion for rehearing and reconsideration, which the First DCA denied on

April 6, 2016. Id. at 38–41.

On February 13, 2017, Green filed a pro se petition for writ of habeas

corpus, which the trial court denied on May 5, 2017. Doc. 6-8 at 194–208; Doc.

6-9 at 75–77. On May 12, 2017, Green filed a motion for rehearing, which the

trial court denied on June 5, 2017. Doc. 6-9 at 98–101, 103–04. On February

19, 2018, the First DCA per curiam affirmed the denial without a written

opinion in Green v. State, 241 So. 3d 768 (table) (Fla. 1st DCA 2018) (1D17-

3200), and issued the mandate on March 19, 2018. Doc. 6-9 at 149–51.

On February 27, 2017, Green filed a pro se petition for writ of habeas

corpus, which the First DCA per curiam dismissed pursuant to Baker, in Green

v. Jones, 224 So. 3d 212 (table) (Fla. 1st DCA Mar. 27, 2017) (1D17-0827). Doc.

6-9 at 153–62, 175. On March 29, 2017, Green filed a supplement to his

petition, which the First DCA construed as a motion and denied on April 18,

2017. Id. at 177–80. On April 10, 2017, Green filed a motion for rehearing en

banc and written opinion, which the First DCA denied on May 3, 2017. Id. at

185–89.

On April 21, 2017, Green filed a pro se motion to vacate void judgment

and sentence and for transport, which he supplemented on March 8, 2018 and

March 13, 2018. See Doc. 6-10 at 103. The trial court denied these motions on

September 10, 2018. Id. at 103–07; see also Doc. 33-12 at 19–23.

On September 14, 2017, Green filed a pro se motion to correct illegal

sentence under Florida Rule of Criminal Procedure 3.800(a), which the trial

court denied on September 10, 2018. Doc. 6-10 at 78–80; Doc. 33-7 at 2.

On March 6, 2018, Green filed a pro se petition for writ of mandamus,

which the First DCA per curiam “denied on the merits” on April 3, 2018 and

stated:

The Court notes that [Green] has unsuccessfully sought relief in

eight other cases which challenged his judgment and sentence in

Duval County, Fourth Judicial Circuit case number 16-2012-CF-

7413. [Green] has failed to obtain relief by direct appeal, petition

for writ of habeas corpus, petition alleging ineffective assistance of

appellate counsel or appeals from postconviction orders in 1D13-

1871, 1D14-4080, 1D15-1916, 1D16-0323, 1D17-0581, 1D17-0827,

and 1D17-3200. Accordingly, [Green] shall show cause within 15

days of the date of this order why sanctions should not be imposed

against him, including a prohibition against any future appeals or

petitions challenging the judgment and sentence in Duval County,

Fourth Judicial Circuit case number 16-2012-CF-7413, unless

[Green] is represented by an attorney in good standing with The

Florida Bar. . . . [Green] is advised that the failure to comply with

the terms of this order within the time allowed may result in the

imposition of sanctions without further opportunity to be heard.

Fla. R. App. P. 9.410.

Green v. State, 243 So. 3d 929 (table) (Fla. 1st DCA 2018) (1D18-0960). After

Green responded to the show cause order, the First DCA issued the following

order on April 26, 2018:

Due to [Green’s] apparent abuse of the legal process by his

repeated pro se filings attacking the judgment and sentence, this

Court issued an order directing [Green] to show cause why he

should not be prohibited from future pro se filings. State v. Spencer,

751 So. 2d 47, 48 (Fla. 1999) (requiring the courts “first provide

notice and an opportunity to respond before preventing [a] litigant

from bringing further attacks on his or her conviction and

sentence”). [Green’s] response to the show cause order does not

provide a legal basis to prohibit the imposition of sanctions.

As such, because [Green’s] continued and repeated attacks on the

judgment and sentence have become an abuse of the legal process,

we hold that he is barred from future pro se filings in this Court

concerning Duval County Circuit Court case number 2012-CF-

7413. The Clerk of the Court is directed not to accept any future

filings concerning this case unless they are filed by a member in

good standing of The Florida Bar. [Green] is warned that any

filings that violate the terms of this order may result in a referral

to the appropriate institution for disciplinary procedures as

provided in section 944.279, Florida Statutes. See Fla. R. App. P.

9.410.

Doc. 6-10 at 56. On May 17, 2018, the First DCA denied Green’s motion for

rehearing en banc and clarification with written opinion. The Florida Supreme

Court denied his petition for writ of mandamus in Green v. State, No. SC22-

540, 2022 WL 1548438, *1 (Fla. May 17, 2022).

On September 21, 2018, Green filed a pro se motion to correct illegal

sentence under Rule 3.800(a) (filed in duplicate by the clerk of the court on

September 27, 2018 and September 28, 2018), which the trial court denied on

October 15, 2018. Doc. 6-10 at 27–39, 86–92; Doc. 33-11 at 2–8; Doc. 33-12 at

2–8. On October 26, 2018, Green filed a motion for rehearing or

reconsideration, which the trial court denied on November 27, 2018. Doc. 6-10

at 40–43, 51–52.

On January 28, 2019, Green filed a pro se petition for writ of habeas

corpus, which the Florida Supreme Court “denied as procedurally barred” in

Green v. Inch, No. SC19-0178, 2019 WL 2240149, *1 (Fla. May 24, 2019), and

stated it would not entertain a motion for rehearing or reinstatement. Doc. 6-

10 at 2–13, 69.

On June 4, 2019, Green filed a pro se motion to correct illegal sentence

under Rule 3.800(a), which the trial court denied on November 20, 2019. Id. at

166–69, 182–83, 186–89. On or around December 12, 2019, Green appealed,

but on December 26, 2019 the clerk of the court for the First DCA advised him

that his pro se filings had “been placed in a correspondence file, unfiled and

without action” pursuant to the order issued on April 26, 2018 in case number

1D18-0960. Id. at 224; Doc. 33-15 at 2–3, 10.

On December 12, 2019, Green filed another pro se motion to correct

illegal sentence under Rule 3.800(a), which the trial court denied with

prejudice on January 14, 2020. Doc. 6-10 at 225–32, 234–35.

On January 2, 2020, Green filed an amended motion to correct illegal

sentence under Rule 3.800(a), which the trial court struck on February 16,

2022, as duplicative, immaterial, and moot because it was superseded by

Green’s subsequent Rule 3.800(a) motion filed on July 21, 2020.7 Doc. 33-20 at

2–9, 13–14.

On January 24, 2020, Green filed an amended petition for writ of habeas

corpus, which the Florida Supreme Court dismissed in Green v. Inch, No. SC20-

0007, 2020 WL 914665 (Fla. Feb. 25, 2020), explaining that generally it would

“not consider the repetitive petitions of persons who have abused the judicial

processes of the lower courts such that they have been barred from filing

certain actions there” and that it would not entertain any motion for rehearing

or reinstatement. Doc. 6-10 at 202–10, 248.

On April 30, 2020, Green filed another pro se amended petition for writ

of habeas corpus, which the Florida Supreme Court denied as repetitive to

Green v. Inch, No. SC19-0178, 2019 WL 2240149 (Fla. May 24, 2019), in Green

v. Inch, No. SC20-0468, 2020 WL 3569226, *1 (Fla. July 1, 2020). Doc. 6-10 at

250–54, 259.

On July 21, 2020 and November 24, 2020, respectively, Green filed

motions to correct illegal sentence under Rule 3.800(a), which the trial court

struck “as moot and immaterial” on May 9, 2022, because they were

superseded by Green’s Rule 3.800(a) motion, filed on November 22, 2021 and

denied on February 15, 2022. Doc. 6-10 at 261–64; Doc. 33-21 at 13–32, 50–56,

7 That motion was submitted for mailing on July 16, 2020.

70–71. On March 2, 2022, Green filed a motion for rehearing, which the trial

court denied on May 9, 2022. Doc. 33-21 at 57–63, 68–69.

On March 15, 2022, Green filed another pro se motion to correct illegal

sentence under Rule 3.800(a), which the trial court denied on May 9, 2022. Doc.

33-22 at 2–5, 7–8.

On March 28, 2022, Green filed a pro se emergency petition for writ of

habeas corpus, which the Florida Supreme Court denied as procedurally

barred in Green v. Dixon, No. SC22-0399, 2022 WL 1548559 (Fla. May 17,

2022). Doc. 33-24 at 2–7, 37. On June 6, 2022, Green filed a motion for

rehearing, which the Florida Supreme Court struck as unauthorized on June

8, 2022. See id. at 36–37.

On July 20, 2022, Green filed another pro se petition for writ of habeas

corpus, which the Florida Supreme Court denied as repetitive to Green v.

Dixon, SC22-0399, 2022 WL 1548559 (Fla. May 17, 2022), in Green v. Dixon,

No. SC22-0941, 2022 WL 3442215 (Fla. Aug. 17, 2022). Doc. 33-23 at 2–9, 44–

45.

On October 17, 2022, Green filed a pro se successive petition for writ of

habeas corpus, which the Florida Supreme Court denied as repetitive in Green

v. Dixon, No. SC22-1388, 2022 WL 17347248 (Fla. Dec. 1, 2022), and expressly

retained jurisdiction to pursue any possible sanctions against Green in light of

the fourteen other cases he had initiated in the Florida Supreme Court since

2013. Doc. 33-25 at 2–13, 50–52. The court made the following additional

findings:

It appearing that [Green] has abused the judicial process by filing

numerous pro se filings in this Court that are either meritless or

not appropriate for this Court’s review, the Court now takes action.

Therefore, La[D]on M. Green is hereby directed to show cause on

or before December 16, 2022, why he should not be barred from

filing any pleadings, motions, or other requests for relief in this

Court related to Case No. 162012CF007413AXXXMA unless such

filings are signed by a member of The Florida Bar in good standing.

[Green] is also directed to show cause why, pursuant to section

944.279(1), Florida Statutes, a certified copy of the Court’s findings

should not be forwarded to the appropriate institution for

disciplinary procedures pursuant to the rules of the Florida

Department of Corrections as provided in section 944.09, Florida

Statutes.

2022 WL 17347248, at *1; Doc. 33-25 at 52. After considering Green’s response

to the show cause order, on March 16, 2023, the Florida Supreme Court entered

an opinion in Green v. Dixon, 361 So. 3d 235 (Fla. 2023), stating in pertinent

part:

[W]e direct the Clerk of this Court to reject any future pleadings

or other requests for relief submitted by LaDon Green that are

related to case number 162012CF007413AXXXMA, unless such

filings are signed by a member in good standing of The Florida Bar.

Furthermore, because we have found [Green’s] petition to be

frivolous, we direct the Clerk of this Court, pursuant to section

944.279(1), Florida Statutes (2022), to forward a copy of this

opinion to the Florida Department of Corrections’ institution or

facility in which [Green] is incarcerated. No motion for rehearing

or clarification will be entertained by this Court.

Doc. 33-25 at 49–50.

IV. ANALYSIS

Green raises seven grounds for relief, which the Court will address

sequentially except ground one, which will be addressed last. Docs. 1, 28-2.

Ground Two

As Ground Two, Green alleges the trial court lacked jurisdiction to

preside over his case because of the trial judge’s actions related to Green’s

motions to disqualify the judge. Doc. 1 at 8; Doc. 8 at 22–33.8 Green explains:

The judge[,] during [the] December 18, 2012 proceedings for the

motion to disqualify [the] trial judge[,] determined the motion as

legally sufficient; thus, she was clearly prevented from presiding

over [Green’s] trial and sentencing. The same judge[,] during post-

conviction proceedings[,] has agreed that those actions were

sufficient grounds for her to discontinue during post-conviction yet

the new judge refused to void [the] conviction and sentence as

required.

Doc. 1 at 8.

8 To the extent Green attempts to raise new claims in his Reply as to any of the

alleged grounds, such claims are not properly before the Court. See Rule 2(c), Rules

Governing Section 2254 Cases (“The petition must: (1) specify all the grounds for

relief available to the petitioner . . . .”); Herring v. Sec’y, Dep’t of Corrs., 397 F.3d 1338,

1342 (11th Cir. 2005) (“As we repeatedly have admonished, ‘[a]rguments raised for

the first time in a reply brief are not properly before a reviewing court.’”) (collecting

cases); see also Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (finding that

a pro se litigant abandoned an issue that was not raised in his initial brief as the

court does “not address arguments raised for the first time in a pro se litigant’s reply

brief”).

Green presented a similar claim in grounds six and thirteen of his Rule

3.850 motion. Doc. 6-7 at 58–61, 73–74, 203–05, 209. The trial court summarily

denied the claims as follows:

Ground Six

[Green] contends the Court lacked jurisdiction to enter judgment

or impose a sentence in his case. [Green] further contends the

State violated his Constitutional rights by continuing to prosecute

him when it was aware the Court lacked jurisdiction. Specifically,

[Green] alleges the trial court judge had recused herself in an

earlier proceeding in his case and was therefore barred from

presiding in [his] retrial.

The record refutes [Green’s] allegation that a recusal occurred.

Contrary to [Green’s] contentions, Judge Mallory Cooper denied

[Green’s] Motion for Disqualification of Judge filed prior to his first

trial as legally insufficient. Likewise, after the first trial, Judge

Cooper denied as legally insufficient [Green’s] Motion for

Disqualification of Judge filed on December 18, 2012.

Furthermore, Judge William Wilkes agreed to cover [Green’s] first

trial, so he was [the] sitting judge for Judge Cooper at that time.

To the extent [Green] claims prosecutorial misconduct, such claims

are procedurally barred in a [Rule] 3.850 motion. Johnson v. State,

985 So. 2d 1215 (Fla. 1st DCA 2008) (noting that claims of

prosecutorial misconduct are not cognizable in a collateral

postconviction motion). Accordingly, [Green] has failed to

demonstrate that the Court lacked jurisdiction. Therefore, [Green]

is not entitled to relief on Ground Six.

Ground Thirteen

[Green] claims the Court lacked jurisdiction to enter a judgment

and sentence against [him] because Judge Cooper recused herself

and because the Court failed to apprise [him] of his right to counsel

at each critical stage of [the] proceedings. [Green] relies on his

arguments from Grounds One, Six, and Seven in support of this

claim.

As outlined above in its analysis of Grounds Six and Seven, Judge

Cooper did not recuse herself from the case; therefore, she had

jurisdiction to enter the judgment and sentence. Furthermore, the

Court finds [Green’s] claims regarding the Court’s allege[d]

failures to apprise [him] of his right to counsel to be a claim that

should or could have been raised on direct appeal. Therefore,

[Green’s] claim is procedurally barred. Baker, 878 So. 2d at 1243;

Hughes v. State, 22 So. 3d 132, 135 (Fla. 2d DCA 2009).

Accordingly, [Green] is not entitled to relief on Ground Thirteen.

Doc. 6-7 at 237–38 (record citations omitted; case citations modified). The First

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

Doc. 6-8 at 60.

Because the First DCA affirmed without a written opinion, the Court

presumes the affirmance was based on the trial court’s findings. See Wilson,

584 U.S. at 125–26. As the trial court decided the claim on the merits, the

Court addresses it in accordance with the deferential standard for federal court

review of state court adjudications. Upon thorough review of the record and

the applicable law, the Court finds that the state court’s adjudication of this

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

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

on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). As the

trial court observed, Green’s motions for disqualification of Judge Cooper, filed

before and after his first trial, were denied as legally insufficient on December

3, 2012 and January 24, 2013, respectively. Doc. 6-1 at 153–56, 230–33, 314–

17. His motion for disqualification filed after his second trial was also denied

as legally insufficient on March 6, 2013. Id. at 385. As such, the trial court

properly determined that a recusal did not occur either before or after Green’s

first trial.9 Therefore, Ground Two must be denied.

Ground Three

As Ground Three, Green alleges his trial counsel (Ms. Trish Rado), who

was appointed solely for purposes of sentencing, was ineffective because she

failed to inform the court that it lacked subject matter jurisdiction over Green’s

case considering his motions to disqualify the judge. Doc. 1 at 9; Doc. 8 at 34–

37.

Green raised this claim in ground seven of his Rule 3.850 motion. Doc.

6-7 at 61–63. The trial court summarily denied the ground as follows:

[Green] claims his counsel, who was appointed to represent [him]

at sentencing, was ineffective for failing to bring to the Court’s

attention that it lacked jurisdiction because Judge Cooper recused

herself prior to the second trial.

As stated above in the Court’s analysis of Ground Six, the record

refutes [Green’s] claim that the Court found [Green’s] Motion to

Disqualify legally sufficient. Furthermore, the record reflects that

[Green] represented himself throughout pre-trial and trial

proceedings. Therefore, “[a] defendant who represents himself has

the entire responsibility for his own defense, even if he has standby

counsel”; therefore, “[s]uch a defendant cannot thereafter complain

that the quality of his defense was a denial of ‘effective assistance

9 On October 14, 2015, Judge Cooper granted Green’s August 6, 2015 motion

for disqualification filed over two years after his second trial. See Doc. 6-6 at 201–03;

Doc. 6-7 at 81–83.

of counsel.’” Behr v. Bell, 665 So. 2d 1055, 1056–57 (Fla. 1996). As

[Green] represented himself at the time of the filing of the Motion

to Disqualify, he cannot claim ineffective assistance of counsel. Id.

Accordingly, for the above stated reasons, [Green] is not entitled to

relief on Ground Seven.

Doc. 6-7 at 238 (record citations omitted; case citation modified). The First

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

Doc. 6-8 at 60.

Because the First DCA affirmed without a written opinion, the Court

presumes the affirmance was based on the trial court’s findings. See Wilson,

584 U.S. at 125–26. As the trial court decided the claim on the merits, the

Court addresses it in accordance with the deferential standard for federal court

review of state court adjudications. Upon thorough review of the record and

the applicable law, the Court finds that the state court’s decision to deny

Green’s claim was neither contrary to nor an unreasonable application of

federal law, and it was not based on an unreasonable determination of the facts

given the evidence presented to the state court. See 28 U.S.C. § 2254(d).

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

deference, this claim must still be denied on the merits. As discussed, Judge

Cooper found Green’s motions for disqualification to be legally insufficient,

meaning that the trial court did not lack subject matter jurisdiction over

Green’s case. Considering that the record refuted Green’s argument for lack of

subject matter jurisdiction, his counsel was not ineffective for failing to raise

this futile issue at the sentencing hearing. See Pinkney v. Sec’y, Dep’t of Corrs.,

876 F.3d 1290, 1297 (11th Cir. 2017) (“[A]n attorney will not be held to have

performed deficiently for failing to perform a futile act, one that would not have

gotten his client any relief.”); Diaz v. Sec’y for Dep’t of Corrs., 402 F.3d 1136,

1142 (11th Cir. 2005) (holding that counsel was not ineffective for failure to

raise a meritless argument); Bolender v. Singletary, 16 F.3d 1547, 1573 (11th

Cir. 1994) (noting that “it is axiomatic that the failure to raise non[-

]meritorious issues does not constitute ineffective assistance.”). Therefore,

Ground Three is denied.

Ground Four

As Ground Four, Green alleges ineffective assistance of sentencing

counsel for failure to properly prepare a record of appeal. Doc. 1 at 11; Doc. 8

at 38–42. He explains:

Had counsel properly prepared a record of appeal, appellate

counsel would have known that [Green] did not waive his right to

counsel because transcript would have shown that the trial court

did not conduct a Faretta inquiry on December 3, 2012, the day of

arraignment, or any day after prior [sic] to trial. This claim would

have been raised because the record would have supported the

claim.

Doc. 1 at 11.

Green raised this claim in grounds nine and ten of his Rule 3.850 motion.

Doc. 6-7 at 68–70. The trial court summarily denied the grounds as follows:

[Green] argues his counsel was ineffective for failing to properly

complete the record on appeal, so as to afford [him] a proper and

thorough direct appeal. The record reflects the Office of the Public

Defender was appointed to represent [Green] on appeal prior to the

Notice of Appeal being filed. Accordingly, [Green’s] claims here are

directed against appellate counsel. Such claims are not cognizable

in a rule 3.850 motion, as claims of ineffective assistance of

appellate counsel are required to be filed in the court to which the

appeal was taken. Fla. R. App. P. 9.141(d)(3); Jean-Marie v. State,

27 So. 3d 709 (Fla. 3d DCA 2010). Accordingly, [Green] is not

entitled to relief on Grounds Nine and Ten.

Doc. 6-7 at 239–40 (record citations omitted). The First DCA per curiam

affirmed the trial court’s denial without a written opinion. Doc. 6-8 at 60.

Because the First DCA affirmed without a written opinion, the Court

presumes the affirmance was based on the trial court’s findings. See Wilson,

584 U.S. at 125–26. As mentioned earlier, “[a] state court’s rejection of a

petitioner’s constitutional claim on state procedural grounds will generally

preclude any subsequent federal habeas review of that claim.” Judd v. Haley,

250 F.3d 1308, 1313 (11th Cir. 2001); see also Coleman, 501 U.S. at 74–48.

However, the state court’s procedural ruling will preclude federal review only

if it “rests upon [an] ‘independent and adequate’ state ground.” Judd, 250 F.3d

at 1313. A state court’s procedural ruling constitutes an “independent and

adequate” state rule of decision if (1) the last state court rendering a judgment

in the case clearly and expressly states that it is relying upon a state

procedural rule to resolve the federal claim without reaching the merits of the

claim, (2) the state court’s decision rests solidly on state law grounds and is not

intertwined with an interpretation of federal law, and (3) the state procedural

rule is adequate, meaning it is not applied in an “arbitrary or unprecedented

fashion,” or in a “manifestly unfair” manner. Id.

Here, the trial court expressly applied a state procedural rule and

concluded that Green could not raise the claim of ineffective assistance of

appellate counsel in a Rule 3.850 motion, because Florida procedural rules

require presentation of this claim “in the court to which the appeal was taken.”

Fla. R. App. P. 9.141(d)(3); Jean-Marie, 27 So. 3d at 710; see also Downs v.

State, 740 So. 2d 506, 509 n.5 (Fla. 1999) (“Claims for ineffective assistance of

appellate counsel are not cognizable in a rule 3.850 motion for postconviction

relief, and are more appropriately raised in petitions for habeas corpus.”

(internal citations omitted)). The First DCA affirmed the application of the

procedural bar. See Harmon v. Barton, 894 F.2d 1268, 1273 (11th Cir. 1990)

(holding that a state appellate court’s per curiam affirmance of the lower

court’s ruling explicitly based on procedural default is a clear and express

statement of its reliance on an independent and adequate state law ground

barring federal review). Further, Florida courts consistently apply the

procedural rule barring the collateral review of a claim of ineffective assistance

of appellate counsel in a Rule 3.850 motion. See e.g., Foster v. State, 810 So. 2d

910, 917 (Fla. 2002) (stating that “[t]he issue of appellate counsel’s

effectiveness is appropriately raised in a petition for writ of habeas corpus”).

Accordingly, Green’s claim in Ground Four is procedurally defaulted.

This default forecloses federal habeas review absent a showing of either cause

and prejudice or a fundamental miscarriage of justice. Harris v. Reed, 489 U.S.

255, 262 (1989). Green fails to demonstrate cause and prejudice, or any factor

warranting the application of the fundamental miscarriage of justice exception

to overcome the procedural default. Because Green fails to proffer specific facts

showing an exception to the procedural default rule, Hill v. Jones, 81 F.3d 1015

(11th Cir. 1996), the claim in Ground Four is procedurally barred from federal

review. Nevertheless, even assuming the claim is not procedurally barred, it

must still be denied on the merits for the reasons stated in the Court’s

discussion of Ground Seven. Therefore, Ground Four is denied.

Ground Five

As Ground Five, Green alleges he was “sentenced pursuant to an

inaccurate scoresheet,” which “listed the wrong offense for sentencing and

listed the wrong offense as prior convictions.” Doc. 1 at 13. However, in his

Reply, he “concedes and accepts Respondents’ argument” for denying this

claim. Doc. 8 at 43.

Green raised this claim in his Rule 3.800(a) motion. Doc. 6-10 at 27–33.

The trial court summarily denied the claim as follows:

First, [Green] claims that his primary offense was incorrectly

scored as a level 9 and instead should have been scored as a level

8, because he was convicted of a first[-]degree felony punishable by

up to thirty (30) years. [Green] is incorrect. He was convicted of a

first[-]degree felony punishable by life, which classifies as a level 9

offense on the Scoresheet, pursuant to Florida Rule of Criminal

Procedure 3.704, Appendix A.

Additionally, [Green] claims that the “Prior Record” section of the

Scoresheet was incorrect in that it failed to list his other felony

convictions in his record, and which the State used to habitualize

him, and listed only one offense – armed robbery – which [Green]

claims was not accurate and could have prejudiced the court

against [him]. The transcripts of the 2-part sentencing proceedings

do not indicate that such was a consideration for the trial court,

and instead the trial court found that [Green] qualified as both an

HFO and PRR due to the number of prior felony convictions and

the release date of his last felony conviction. As such, the trial

judge imposed a lawful sentence.

Lastly, as an HFO, the sentencing guidelines do not apply in this

matter. [Green] is subject to an enhanced sentence as a result of

his prior record, regardless of the calculations on the sentencing

guidelines. [Green] was notified of such when he was served with

the State’s Notice of Intent to Classify Defendant as a Habitual

Felony Offender.

In sum, this is a frivolous Motion, which lacks merit. . . . [T]his

Court also finds that [Green’s] instant filing constitutes an abuse

of the procedures governed by the rules and is frivolous in nature.

. . . Thus, this Court directs [Green] to show cause why the Court

should not bar him from filing further pro se claims in the instant

case.

Doc. 6-10 at 37–39 (record citations omitted). Green moved for rehearing or

reconsideration of the denial, which the trial court denied on November 27,

2018. Id. at 51–52. He could not proceed pro se to the First DCA, which had

already found that Green had abused the legal process and barred him from

filing any pro se filings concerning his Duval County Circuit Court case. See

id. at 56.

According to Respondents, Green has exhausted this claim by presenting

it in his Rule 3.800(a) motion. See Doc. 6 at 42. The Court will bypass the

exhaustion issue because the claim must be denied on the merits. See

Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir. 2015) (stating that

“even when the defense has been preserved and asserted by the respondent

throughout the proceeding, a court may skip over the exhaustion issue if it is

easier to deny (not grant, of course, but deny) the petition on the merits without

reaching the exhaustion question”) (citing Granberry v. Greer, 481 U.S. 129,

131 (1987)); see also 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas

corpus may be denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of the State.”). Here,

considering the claim in accordance with the deferential standard for federal

court review of state court adjudications and upon thorough review of the

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

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

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

and was not based on an unreasonable determination of the facts. See 28 U.S.C.

§ 2254(d). Moreover, even if the state court’s adjudication is not entitled to

deference, this claim must still be denied on the merits. Importantly, Green

“concedes and accepts” Respondents’ argument that he is not entitled to relief

on this claim. Doc. 8 at 43. Therefore, Ground Five must be denied.

Ground Six

As Ground Six, Green alleges he “was sentenced for the wrong offense.”

Doc. 1 at 15; Doc. 8 at 43–48. Green explains:

[He] was convicted by a jury for a lesser included offense for which

he was tried before a jury. [Green’s] original charge was robbery

with a deadly weapon[,] a first[-]degree felony punishable by life.

The jury acquitted [him] of the most severe charge and returned a

verdict of robbery with a weapon[,] a lesser included offense[,]

which is a first[-]degree felony with a maximum of 30 years. Yet

[Green] sits in violation of double jeopardy for the offense of

robbery with a firearm or deadly weapon[,] a first[-]degree felony

punishable by life.

Doc. 1 at 15.

Green raised this claim in his Rule 3.800(a) motion. Doc. 6-10 at 166–69.

The trial court summarily denied the claim as follows:

In the current Motion[,] [Green] argues his sentence is illegal

because he was sentenced for a crime for which he was not charged;

he supports his claim by arguing that the jury found him guilty of

Robbery with a non-deadly weapon (and wearing a mask), which,

he alleges, is not a first[-]degree felony punishable by life. [Green’s]

Motion is unfounded for the[] reasons stated hereinafter.

The sentence imposed by the trial court is both consistent with the

jury’s finding and lawful. Section 812.13(2)(b), robbery with a

weapon, is a category I lesser included offense of armed robbery

with a firearm or deadly weapon when that crime is charged

pursuant to 812.13(2)(a)[,] Florida Statutes. [Green] was found

guilty of the lesser included charge of armed robbery with a

weapon, a first[-]degree felony; he was further found guilty of

wearing a mask during the commission of the crime. The first[-]

degree felony, however, was enhanced to allow for a maximum of

life in prison, thereby, supporting the conviction entered by the

trial court. The trial court found [Green] a Habitual Felony

Offender in conformity with section 775.084(4)(a)(1), Fla. Stat.;

therefore, the maximum penalty for the crime for which [Green]

was found guilty was properly increased as allowed by statute “in

the case of a life felony or a felony of the first degree, to life.”

Additionally, in conformity with section 775.082(9)(a)3.b., Fla.

Stat., the trial court found [Green] a Prison Releasee Reoffender

and sentenced him “[f]or a felony of the first degree by a term of

imprisonment of 30 years,” a mandatory minimum sentence, as

authorized by said statute.

This Court recognizes that the Judgment and Sentence contain[] a

scrivener’s error, wherein it does not reflect conviction for the

lesser included crime of robbery with a weapon I, § 812.13(2)(b), a

first[-]degree felony, and the Clerk of Court is authorized to enter

a corrected judgment and sentence. See Johnson v. State[,] 149 So.

3d 727, [729] (Fla. 5th DCA 2014) (allowing trial court to correct a

scrivener’s error in the sentencing documents to reflect conviction

for a lower degree felony where the statutory enhancements

support the term of the sentence imposed). Where the crime for

which [Green] was found guilty was a lesser included crime, and

[Green] was found to be both a Habitual Felony Offender and a

Prison Release[e] Reoffender, the sentence imposed was

authorized by law.

Doc. 6-10 at 187–88 (record citations omitted). Green appealed to the First

DCA, but was advised by the clerk of the court that his pro se filings had “been

placed in a correspondence file, unfiled and without action” pursuant to the

order issued on April 26, 2018 in case number 1D18-0960. Doc. 6-10 at 224;

Doc. 33-15 at 2–3, 10.

According to Respondents, Green has exhausted this claim by presenting

it in his Rule 3.800(a) motion. See Doc. 6 at 45. Again, the Court will bypass

the exhaustion issue because the claim must be denied on the merits. See

Santiago-Lugo, 785 F.3d at 475; 28 U.S.C. § 2254(b)(2). First, considering this

claim in accordance with the deferential standard for federal court review of

state court adjudications and upon thorough review of the record and the

applicable law, the Court finds that the state court’s adjudication of this claim

was not contrary to clearly established federal law, did not involve an

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

on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

Moreover, even if the state court’s adjudication is not entitled to deference, this

claim must still be denied on the merits. Although Green was convicted of

robbery with a weapon, which is a first-degree felony carrying a maximum

penalty of 30 years in prison, his sentence was lawfully enhanced to life in

prison because of his HFO status. Fla. Stat. §§ 775.082(3)(b), 775.084(4)(a)(1),

812.13(2)(b); Doc. 6-1 at 55, 340. Therefore, contrary to his argument, Green

was not sentenced for the wrong offense. As such, Ground Six must be denied.

Ground Seven

As Ground Seven, Green alleges as follows:

Ineffective assistance of counsel for counsel failing to bring to the

trial court’s attention that [the] trial court had violated [Green’s]

Sixth Amendment right to counsel by failing to offer and appoint

counsel or obtain a valid waiver.

Counsel was ineffective during [Green’s] sentencing. Patricia

Rado[,] who was initially appointed as standby counsel[,] was

present at every proceeding that [Green] appeared before the

court. As standby counsel[,] she was not obligated to bring matter

to the court’s attention. But at sentencing when she was then the

attorney in the case[,] [s]he was then obligated to protect [Green]

from an injustice.

Miss Rado was present at the December 3, 2012 arraignment of

the amended information which [Green] was taken to trial on.

Counsel[,] a trained attorney[,] should have known that the court

asking [Green] if he still wished to continue self[-]representation

was not a[n] offer of counsel. That statement would have been

sufficient if asked during the same critical stage, but again counsel

was required to know what a critical stage is.

At [Green’s] sentencing[,] counsel never brought the matter to the

court’s attention. Instead, counsel only requested that the court

sentence [Green] to a 30[-]year mandatory sentence as a prison

releasee reoffender[,] [which was] . . . deficient performance. Her

actions have caused a miscarriage of justice to occur by her failing

to bring a fundamental error to the trial court’s attention. . . .

Petitioner was also denied his right to a fair trial.

. . . [Green] is now amending his petition because the December 3,

2012 transcripts conclusively prove that [Green] was not offered

counsel for the critical stage of arraignment and that [Green] made

no waiver of counsel.

Doc. 28-2 at 1–4; see also Doc. 42.

Green raised these allegations in ground fourteen of his Rule 3.850

motion. Doc. 6-7 at 74–77. The trial court summarily denied the ground as

follows:

[Green] argues that stand-by counsel was ineffective for failing to

apprise the Court of its alleged failure to inform [Green] of his right

to counsel at certain critical stages of the proceedings. As [Green]

represented himself through all critical stages of pre-trial and trial

proceedings, [Green] cannot now assert a claim of ineffective

assistance of counsel. Behr, 665 So. 2d at 1056–57. Accordingly,

[Green] is not entitled to relief on Ground Fourteen.

Doc. 6-7 at 241. The First DCA per curiam affirmed the trial court’s denial

without a written opinion. Doc. 6-8 at 60.

Because the First DCA affirmed without a written opinion, the Court

presumes the affirmance was based on the trial court’s findings. See Wilson,

584 U.S. at 125–26. As the trial court decided the claim on the merits, the

Court addresses these allegations in accordance with the deferential standard

for federal court review of state court adjudications. Upon thorough review of

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

decision to deny Green’s claim was neither contrary to nor an unreasonable

application of federal law, and it was not based on an unreasonable

determination of the facts given the evidence presented to the state court. See

28 U.S.C. § 2254(d).

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

deference, this claim must still be denied. At his initial arraignment on August

16, 2012, Green advised the trial court, in no uncertain terms, that he did not

want to be represented by the Public Defender’s Office, stating, “No one from

that office has come to discuss any matters with me, and I’m not placing my

life in anyone’s hands but my own.” Doc. 6-1 at 162, 165. Because of Green’s

representations, the trial court conducted a Faretta inquiry. The following

exchange occurred between the trial court and Green:

THE COURT: . . . The Faretta inquiry is very lengthy. I need you

to answer my questions. Do you understand that you have a right

to an attorney and if you cannot afford to hire an attorney, one will

be appointed for you which has been done; do you understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT: And do you understand that the State of Florida will

pay for your attorney to advice [sic] you in these proceedings?

THE DEFENDANT: Yes, ma’am.

THE COURT: And you told me you do not wish to continue with

your appointed attorney, correct?

THE DEFENDANT: Yes.

THE COURT: I’m going to explain to you some of the ways that

having an attorney to represent you can be to your advantage. A

lawyer’s legal knowledge and experience may favorably affect bail

for pretrial release possibilities, may result in obtaining

information about your case through the skillful use of discovery

devices and may uncover potential violation of your Constitutional

rights and take effective measures to address them, making sure

compliance with speedy trial and statute of limitations provisions

and may identify and secure favorable evidence to be introduced

later at trial on your behalf. Do you understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT: At the time of trial an attorney has the experience

and knowledge of the entire process and would argue for your side

during the whole trial and present the best legal argument for your

defense.

Jury qualification and selection are governed by numerous legal

procedures, and an attorney’s knowledge and experience could

enhance the selection process on your behalf.

A lawyer can call witnesses for you, question witnesses against you

and present evidence on your behalf. A lawyer can advise you on

whether you should testify, the consequences of that decision and

what you have a right not to say.

A lawyer has studied the rules of evidence and knows what

evidence can or cannot come into your trial. A lawyer may provide

assistance in ensuring that a jury is given complete and accurate

jury instructions by the Court, may make effective closing

arguments on your behalf and may prevent improper argument by

the prosecutor.

And a lawyer may ensure that any errors committed during trial

are properly preserved for appellate review later by a higher court.

Do you understand those advantages?

THE DEFENDANT: Yes, ma’am.

THE COURT: In posttrial if you were to be convicted, a lawyer’s

assistance may be useful in preparing for sentencing, ensuring

that favorable facts are brought to the attention of the Court,

ensuring that the Court is advised of all legally available favorable

dispositions and ensuring that your sentence is lawfully imposed.

And an attorney’s legal knowledge and experience may be useful

in filing an appeal and/or in seeking release on bail pending the

appeal.

Do you understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT: It is almost always unwise to represent yourself in

court. And these are some of the disadvantages:

Do you understand that you will not get any special treatment

from the Court just because you represent yourself?

THE DEFENDANT: Yes, ma’am.

THE COURT: Do you understand that you will not be entitled to a

continuance simply because you want to represent yourself?

THE DEFENDANT: Yes, ma’am.

THE COURT: You will also be limited to the legal resources that

are available to you while you are in custody. You will not be

entitled to any additional library privileges just because you are

representing yourself. A lawyer has fewer restrictions in

researching your defense. Do you understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT: However, what I do on that [is] I do an order giving

you the same library privileges and phone privileges as the other

pro se litigants, which can be a little bit more than the general

population.

You are not required to possess the legal knowledge and skills of

an attorney in order to represent yourself. However, you will be

required to abide by the rules of criminal law and the rules of

courtroom procedure. These laws took lawyers years to learn and

abide by. If you demonstrate an unwillingness to abide by the

rules, I may terminate your self-representation. Do you

understand that?

THE DEFENDANT: What do you mean by -- and do what after

that if you . . .

THE COURT: It just depends. But you have to follow the rules.

And I understand you are not legally trained, correct?

THE DEFENDANT: Yes.

THE COURT: And I understand that and I understand you’re not

as familiar with the rules as an attorney would be. However, you

are required to follow the rules. And if you refuse to follow the rules

-- if you don’t know what to do on something, we’ll try to help you

through that either with the standby counsel or whatever, but I’m

just saying if you refuse to follow the rules, then I can terminate

your self-representation. If you are disruptive in the courtroom, I

can terminate your self-representation and remove you from the

courtroom, in which case your trial will continue without you being

present. Do you understand?

THE DEFENDANT: Yes, ma’am.

THE COURT: Do you understand that your access to the state

attorney who is prosecuting you will be severely reduced as

compared to an attorney who can easily contact the state attorney;

do you understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT: In addition the state will not go easier on you or give

you any special treatment because you are representing yourself.

The state will present its case against you as if you were an

experienced attorney.

Is there a no contact order for the victim?

MS. MAUERBERGER: Judge, I don’t know if that was indicated

at J1, but not that I’m aware of.

THE COURT: The condition of your bond will be a provision of no

contact with the victim or witnesses, of actual witnesses to the

event if there were any. I don’t know. And so the only way you can

talk with them would be through a deposition where there would

be sworn testimony with the court reporter, the state present, you

present, and the witnesses present.

THE DEFENDANT: Yes, ma’am.

THE COURT: Other than that you are not allowed to contact them,

but your attorney, if you have an attorney, can contact them and

talk with them and see what they would be saying. Do you

understand?

THE DEFENDANT: Yes, ma’am.

THE COURT: And, finally, if you are convicted, you cannot claim

on appeal that your own lack of legal knowledge or skill constitutes

a basis for a new trial. In other words, you cannot claim that you

received ineffective assistance of counsel for yourself?

THE DEFENDANT: Yes, ma’am.

THE COURT: Do you understand all of the dangers and

disadvantages that I have explained?

THE DEFENDANT: Yes, ma’am.

THE COURT: Do you have any questions about it?

THE DEFENDANT: No, ma’am.

Id. at 166–72.

After the trial court advised Green of the charge and the possible

penalties, see id. at 172–74, the following colloquy took place:

THE COURT: And now I’m going to ask you a few questions about

yourself to determine if you are competent to make a knowing and

intelligent waiver of counsel. How old are you?

THE DEFENDANT: 46.

THE COURT: And you are able to read and write?

THE DEFENDANT: Yes, ma’am.

THE COURT: And English is your native language; is that correct?

THE DEFENDANT: Yes, ma’am.

THE COURT: How many years of school did you complete?

THE DEFENDANT: 12.

THE COURT: And are you currently under the influence of any

drugs or alcohol?

THE DEFENDANT: No, just blood pressure medicine.

THE COURT: Does that affect your ability to understand?

THE DEFENDANT: No, ma’am.

THE COURT: Do you have any physical problems which would

hinder your self-representation in this case, and that would be

something like a hearing problem, a speech impediment or poor

eyesight?

THE DEFENDANT: Poor eyesight.

THE COURT: Are you able to see me?

THE DEFENDANT: I need reading glasses. I don’t have them.

THE COURT: So you need reading glasses?

THE DEFENDANT: Yes, ma’am.

THE COURT: And do you have any but you just don’t have them

at the jail?

THE DEFENDANT: No, I don’t have them at the jail, and I have

been having problems getting in contact with members -- just

someone to try to bring me some glasses. I thought maybe

somebody would bring them. I guess somebody still (inaudible).

THE COURT: But you do have some glasses someone could bring

to you?

THE DEFENDANT: Yes. I can easily buy some reading glasses.

THE COURT: I don’t know if they have any reading glasses at the

jail or not. You might check on that.

Have you ever been diagnosed or treated for a mental illness?

THE DEFENDANT: No, ma’am.

THE COURT: Has anyone told you not to use a lawyer?

THE DEFENDANT: No.

THE COURT: Has anyone threatened you if you use a lawyer?

THE DEFENDANT: No.

THE COURT: And do you understand again that an attorney

appointed by the Court would represent you for free other than the

$150 fee?

THE DEFENDANT: Yes, ma’am.

THE COURT: Have you ever represented yourself in a trial?

THE DEFENDANT: No, ma’am.

THE COURT: Do you have any other questions about having a

lawyer continue to represent you?

THE DEFENDANT: No, ma’am.

THE COURT: Having been advised of your right to counsel, the

advantages of having counsel, the disadvantages and dangers of

proceeding without counsel, the nature of the charges and possible

consequences in the event of a conviction, are certain that you do

not want your attorney to continue to defend you?

THE DEFENDANT: Yes, ma’am.

THE COURT: If I allow you to represent yourself and if you

request it, I can have the assistant public defender act as standby

counsel. They would be available for you if you have any questions

during the course of these proceedings. Would you like standby

counsel?

THE DEFENDANT: That would be fine.

THE COURT: Okay. I will appoint standby counsel to assist you.

However, you are still responsible for the organization and content

of presenting your case. And you still have the entire responsibility

for your own defense. Do you understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT: I do find that Mr. Green is competent to waive

counsel and that his waiver of counsel is knowing and intelligent.

I will give you a copy of the Faretta inquiry I just went over with

you, and you can read it anytime you want to. And if you ever have

any questions, make sure you let me know.

THE DEFENDANT: I will.

Id. at 174–78.

At a pretrial motion hearing on October 4, 2012, Green again rejected

the trial court’s offer of court-appointed counsel:

THE COURT: And do you still wish to continue to represent

yourself with stand-by counsel?

THE DEFENDANT: Yes, ma’am.

THE COURT: And you understand that the Court will appoint an

attorney who will represent you for free?

THE DEFENDANT: Yes, ma’am.

THE COURT: And I’ve gone over all that with you before?

THE DEFENDANT: Yes, ma’am.

THE COURT: And have found that you are competent and you

waive counsel.

Id. at 484.

At another pretrial hearing on October 23, 2012, Green reaffirmed his

decision to continue to represent himself:

THE COURT: Mr. Green, do you wish to still continue to represent

yourself?

THE DEFENDANT: Yes, ma’am.

THE COURT: And you have stand-by counsel. And you

understand that the State of Florida would pay for an attorney to

represent you if you wanted to be represented?

THE DEFENDANT: Yes, ma’am.

THE COURT: And I have found on previous occasions that you are

competent to waive counsel and that you’re doing so knowingly and

intelligently and freely and voluntarily.

Id. at 505.

Green continued to express his desire to represent himself at the next

pretrial hearing on November 20, 2012:

THE COURT: First of all, Mr. Green, do you still wish to continue

to represent yourself?

THE DEFENDANT: Yes, ma’am.

THE COURT: And you understand that the Court would appoint

an attorney for you if you could not hire one and that attorney

would represent you for no charge other than the $150 charge?

THE DEFENDANT: Yes, ma’am.

THE COURT: And you have stand-by counsel, correct?

THE DEFENDANT: Yes, ma’am.

THE COURT: And on previous occasions and again today I will

find that you are competent to waive counsel, that your waiver is

valid and intelligent and freely and voluntarily made.

Id. at 519–20.

Again, on November 29, 2012, Green reiterated his wish to continue

representing himself:

THE COURT: Good morning, Mr. Green.

THE DEFENDANT: Good morning.

THE COURT: Do you wish to continue to represent yourself?

THE DEFENDANT: Yes, ma’am.

THE COURT: With stand-by counsel?

THE DEFENDANT: Yes, ma’am.

Id. at 534. That same day, the state advised Green that it filed an amended

information, explaining:

The only change that I made in the Information is down at the

bottom, I just added the language of gloves, mask or other conceal

[sic] to conceal his i[d]entity contrary to Section 775.084. It’s still

an armed robbery. I just added that additional language, which is

an enhancement[,] but in this case[,] won’t enhance it.

Id. at 535–36. Green asked the trial court for additional time over the weekend

to review the amended information before entering his plea, which the trial

court granted. Id. at 536. Green, nevertheless, assured the trial court that he

would be ready for trial the following week. Id. at 543.

The following Monday, December 3, 2012, at his arraignment on the

amended information, Green was still not ready to enter a plea, and, thus, the

trial court entered a plea of not guilty on his behalf. Doc. 37-2 at 4–5. Green

then advised the trial court that he was not ready for trial and demanded that

the judge disqualify herself. Id. at 5–6. The trial judge, the Honorable Mallory

Cooper, passed the case to later that day for jury selection before the Honorable

William A. Wilkes, with the understanding that the parties would begin

presenting evidence to the jury the next day, Tuesday, December 4, 2012. Id.

at 6–7. When Green appeared before Judge Wilkes for jury selection on

December 3, 2012, he acknowledged that he was representing himself and had

been doing so “[g]oing on four and a half months now, since arraignment.” Doc.

6-2 at 6. Then, the following exchange took place:

THE COURT: . . . Now, you want to continue representing yourself,

correct?

MR. GREEN: Yes, sir.

THE COURT: And I guess you were in whose division, Judge

Cooper’s?

MR. GREEN: Yes.

THE COURT: And she went over what they call the “Faretta,”

about the advantages and disadvantages of representing yourself?

MR. GREEN: Yes, sir.

THE COURT: And you want Miss Rado to be your stand-by

counsel? In case you have a question, you can ask her, in private,

of course.

MR. GREEN: Yes, sir.

THE COURT: So you’re ready to proceed?

MR. GREEN: Yes, sir.

THE COURT: All right. We’re going to pick your jury first, and

we’re going to try your case tomorrow starting at 10:00 a.m.

Id. at 7–8. Green’s case then proceeded through jury selection and trial before

Judge Wilkes, but the jury was unable to reach a verdict and the trial court

declared a mistrial on December 5, 2012. See Doc. 6-2 at 8–203; Doc. 6-3 at 3–

219.

At a pretrial conference on January 24, 2013, Green advised the trial

court that he still wanted to represent himself, with stand-by counsel, and

acknowledged that his retrial was set to begin the following Monday. Doc. 6-1

at 553, 571. The trial court again found that Green was competent to represent

himself and that he waived his right to counsel “knowingly and intelligently.”

Id. at 571.

Prior to jury selection for Green’s retrial, on January 28, 2013, the trial

court asked Green twice if he still wanted to represent himself at trial:

THE COURT: Mr. Green, do you still wish to continue to represent

yourself with stand-by counsel?

THE DEFENDANT: Yes, ma’am.

. . . .

THE COURT: Mr. Green, before we bring the jury panel in, you’re

still under oath. Do you still wish to continue to represent yourself

with stand-by counsel?

THE DEFENDANT: Yes, ma’am. Yes, ma’am.

THE COURT: And I have found on numerous occasions that you

certainly are competent to waive counsel and do so knowingly and

intelligently. I just wanted to check before we got started.

THE DEFENDANT: Okay. Thank you.

Doc. 6-4 at 8–10. After the jury was selected that day, the trial court once again

asked Green if he wished to continue to represent himself:

THE COURT: Good morning, Mr. Green.

Before we get started, do you still wish to continue to represent

yourself with stand-by counsel?

THE DEFENDANT: Yes, ma’am.

THE COURT: And I have found previously on numerous occasions

that you were competent to waive counsel and you did so

knowingly and intelligently and nothing has occurred for me to

change that finding. So you can proceed pro se with stand-by

counsel.

Id. at 122.

Later, when Green was getting ready to testify at his retrial, on January

31, 2013, the trial court reaffirmed that he was competent to represent himself:

THE COURT: And I’ve already found on numerous occasions

you’re competent to represent yourself. You’re certainly competent

to make this decision. But did you feel that you wanted to ask your

stand-by counsel about it at all?

THE DEFENDANT: No, ma’am, I’m fine.

THE COURT: Okay. I do find that Mr. Green is freely and

voluntarily and knowingly and intelligently electing to waive his

right to remain silent and does wish to testify in his own defense.

Doc. 6-5 at 84.

After the jury reached a verdict at Green’s retrial, he asked for court-

appointed attorney, but then indicated at his sentencing hearing on March 14,

2013 that he wished to represent himself again:

MS. RADO: Your Honor, this is Mr. Green before the Court. I had

an opportunity to speak with Mr. Green in the conference room,

and he would like to go back to representing himself for []

sentencing purposes.

The reason he asked for the Public Defender[’s] Office[] back was

because he thought if he didn’t at that time, he would lose the right

to have us on appeal. I’ve explained to him that is not how the

process works at that end it [sic] I certainly would ask for the

services of the Public Defender’s Office for the purposes of appeal.

Based upon that, he would like to again go back to being his own

attorney.

. . . .

THE COURT: Mr. Green, is there anything that Ms. Rado has done

that has caused you to ask to represent yourself?

THE WITNESS: No, ma’am.

THE COURT: In other words, she has not provided ineffective

assistance of counsel; is that correct?

THE WITNESS: No, ma’am.

THE COURT: You just would like to represent yourself again?

THE WITNESS: Yes.

THE COURT: I have to go through the F[a]retta inquiry with you

again. I’m sorry, that is just the rules.

Doc. 6-1 at 575–76. However, after the trial court went through the Faretta

inquiry and the ensuing colloquy, Green decided to allow Ms. Rado to represent

him for purposes of sentencing. Id. at 576–84.

Based on this record evidence, Green competently waived the right to

counsel, did so knowingly and intelligently at each step of the pretrial and trial

proceedings, and revoked his right to self-representation only for purposes of

sentencing. “The Supreme Court has held the formal procedures required to

waive counsel depend on the stage of the trial,” and “range from none, for a

post-indictment photographic display identification, to a full Faretta hearing,

for a defendant to waive counsel for a criminal trial.” McClain v. Sec’y, Dep’t of

Corrs., 855 F. App’x 610, 613 (11th Cir, 2021) (citing Patterson v. Illinois, 487

U.S. 285, 298–99 (1988)). Green received a full Faretta hearing at his

arraignment on the original information on August 16, 2012. At each

subsequent pretrial motion hearing—those held on October 4, 2012, October

23, 2012, and November 20, 2012—the trial court advised him that it could

appoint counsel on his behalf, and each time, he responded that he would

continue to represent himself, with stand-by counsel. Green reaffirmed his

decision to continue to represent himself, with stand-by counsel, both on

November 29, 2012 (the day he was advised of the amended information) and

December 3, 2012 (the day of his arraignment on the amended information

before Judge Cooper and jury selection before Judge Wilkes). Although on

December 3, 2012, Judge Cooper did not seem to advise Green of his right to

representation, later that day when he appeared for jury selection before Judge

Wilkes, Green acknowledged he had been representing himself since the

arraignment and reaffirmed his decision to continue to represent himself, with

stand-by counsel. Doc. 6-2 at 6–8.

In sum, the record shows that Green knowingly and voluntarily elected

to represent himself at all pretrial and trial proceedings, including those on

November 29, 2012 and December 3, 2012. See United States v. Stanley, 739

F.3d 633, 645 (11th Cir. 2014) (holding the Faretta standard satisfied “[i]f the

trial record shows that a defendant knowingly and voluntarily elected to

represent himself” and stating that “[t]he failure to hold a Faretta hearing is

not error as a matter of law”); McClain, 855 F. App’x at 613–14 (“There is no

clearly established Supreme Court law on when the Sixth Amendment

requires an additional waiver of counsel, just that there are times when it may

be necessary. . . . Patterson only speaks to the type of waiver necessary

depending on the stage, but it does not clearly hold there needs to be a new

waiver at each stage.”).

Notably, while “[u]nder Florida law, a violation of the right to counsel

that occurs during a pretrial hearing is per se reversible error on direct appeal,”

“when reviewing the claim de novo under federal law, a violation of the right

to counsel at a pretrial hearing must be evaluated for harmlessness.” Elbert v.

Sec’y, Dep’t of Corrs., No. 8:21-cv-2935-MSS-LSG, 2025 WL 460840, *19 (M.D.

Fla. Feb. 11, 2025) (internal citations omitted). “On federal habeas review, a

federal constitutional error is harmless unless there is ‘actual prejudice,’

meaning that the error had a ‘substantial and injurious effect or influence’ on

the jury’s verdict.” Lucas v. Warden, Ga. Diag. Classification Prison, 771 F.3d

785, 791 (11th Cir. 2014) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637

(1993)). Green cannot show actual prejudice from not having counsel at the

hearings on November 29, 2012 and December 3, 2012. On November 29, 2012,

the trial court granted his request for additional time to review the amended

information. On December 3, 2012, when Green indicated he was not ready to

enter a plea, the trial court entered a not guilty plea on his behalf. And while

the court moved the case to the end of the docket for jury selection that day, it

proceeded with the jury selection only after Green confirmed that he was ready

to proceed to trial and would continue to represent himself with stand-by

counsel. Importantly, any claim of actual prejudice arising from the jury trial

commencing the following day would appear to be negated by the fact that it

resulted in a mistrial. Further, at all subsequent stages of his retrial, the trial

court continued to apprise Green of his right to representation and he

continued to confirm his desire to represent himself until the sentencing

hearing. See Doc. 6-4 at 8–10, 122. Thus, Green cannot show that any error

pertaining to his waiver of counsel had a substantial and injurious effect on

the jury’s verdict. Because Green has not presented a meritorious argument

regarding his waiver, his trial counsel cannot be deemed ineffective for failing

to raise such an argument. See Pinkney, 876 F.3d at 1297; Diaz, 402 F.3d at

1142; Bolender, 16 F.3d at 1573. Therefore, Ground Seven is denied.

Ground One

As Ground One, Green alleges ineffective assistance of counsel as

follows:

[Green] was originally arraigned on August 16, 2012 and for

arraignment purposes waived his right to counsel. On December

3, 2012, the day of jury selection, the State amended the

information and denied [Green] the assistance of counsel for the

purpose of arraignment [on the amended information] and trial[;]

[t]hus, having to require [Green] to file a motion to disqualify trial

judge at this arraignment proceedings. The only Faretta inquiry

was given at [Green’s] sentencing and [Green] declined self-

representation.

Doc. 1 at 6; see also Doc. 8 at 14–21.

Green raised a similar claim in ground one of his Rule 3.850 motion. Doc.

6-7 at 48–50 (alleging the State violated Green’s rights under the Fifth, Sixth,

and Fourteenth Amendments to the United States Constitution when it

proceeded through multiple, critical stages of the case without asking the trial

court to renew the Faretta inquiry at each stage); see also id. at 88–91

(amended supplement to Rule 3.850 motion). The trial court summarily denied

the claim as follows:

In Ground One, [Green] contends the State’s failure to request a

full Faretta hearing prior to each stage of his trial constitutes

prosecutorial misconduct. Specifically, [Green] claims the State

was obligated to request a Faretta hearing at every crucial stage of

his proceeding. [Green] further alleges he would have requested

counsel had he been reminded of the advantages and

disadvantages of self-representation.

The Court finds this claim to be procedurally barred as an issue

that should or could have been raised on direct appeal. Baker, 878

So. 2d at 1243. To the extent, [Green’s] claims allege fundamental

error or manifest injustice, the Court finds [Green’s] claims are

likewise procedurally barred. Hughes, 22 So. 3d at 135.

Accordingly, [Green] is not entitled to relief on Ground One.

Doc. 6-7 at 231–32. The First DCA per curiam affirmed the trial court’s denial

without a written opinion. Doc. 6-8 at 60.

Because the First DCA affirmed without a written opinion, the Court

presumes the affirmance was based on the trial court’s findings. See Wilson,

584 U.S. at 125–26. As the trial court relied on an independent and adequate

state procedural ground when it found the claim to be procedurally barred

pursuant to Baker and Hughes, Green did not exhaust this claim and it is

procedurally defaulted. See, e.g., Coleman, 501 U.S. at 734–35 & n.1 (stating

that federal habeas courts will consider a claim to be procedurally defaulted if

it was presented in state court and rejected on the independent and adequate

state ground of procedural bar or default); Cargile v. Sec’y, Dep’t of Corrs., 349

F. App’x 505, 507–08 (11th Cir. 2009) (stating that claims raised in state

habeas petitions that were dismissed under Baker as unauthorized were

procedurally defaulted from federal habeas review). Importantly, Green has

not shown cause and prejudice, or any factor warranting the application of the

fundamental miscarriage of justice exception to overcome the procedural

default. Nevertheless, even assuming the claim in Ground One is not

procedurally defaulted, it must still be denied on the merits for the reasons

stated in the Court’s discussion of Ground Seven. Accordingly, Green is not

entitled to federal habeas relief on Ground One.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Docs. 1, 28-2) is DENIED and this action is

DISMISSED WITH PREJUDICE.

2. The Clerk of Court shall enter judgment dismissing this action

with prejudice and close this case.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability.10 Because the Court has determined that a certificate of

10 The court should issue a certificate of appealability only if 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

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.

DONE AND ORDERED at Jacksonville, Florida, this 27th day of June,

2025.

Je /) i

Pictu | Car

BRIAN/I, DAVIS

United States District Judge

Jax-11 6/25

C:

LaDon Maurice Green, #299316

Counsel of Record

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

appealability.

57