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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DEREK C. SMITH,

Petitioner,

v. Case No. 3:22-cv-1042-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, 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) on September 16, 2022 (mailbox rule). He

challenges a 2018 state court (Duval County, Florida) judgment of conviction

for armed robbery and armed burglary. Petitioner is serving a term of life

imprisonment as a Prison Releasee Reoffender. Respondents filed a Response

(Doc. 10), with exhibits (Docs. 10-1 to 10-211), arguing that this case should be

1 For all documents filed in this case, the Court cites to the document and page

numbers as assigned by the Court’s electronic case filing system.

dismissed with prejudice as untimely filed, or alternatively, denied on the

merits. Petitioner filed a Reply (Doc. 13).

Upon due consideration, the Court finds this case is due to be dismissed

with prejudice. The Court first addresses the timeliness issue followed by a

discussion of the merits.2

II. One-Year Limitations Period Discussion

a. Governing Legal Authority

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

amended 28 U.S.C. § 2244 by adding the following subsection:

(d)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.

The limitation period shall run from the latest of--

(A) the date on which the judgment

became final by the conclusion of direct

review or the expiration of the time for

seeking such review;

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

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

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

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

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

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

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

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

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

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

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

(B) the date on which the impediment to

filing an application created by State

action in violation of the Constitution or

laws of the United States is removed, if

the applicant was prevented from filing by

such State action;

(C) the date on which the constitutional

right asserted was initially recognized by

the Supreme Court, if the right has been

newly recognized by the Supreme Court

and made retroactively applicable to cases

on collateral review; or

(D) the date on which the factual predicate

of the claim or claims presented could

have been discovered through the exercise

of due diligence.

(2) The time during which a properly filed application

for State post-conviction or other collateral review

with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of

limitation under this subsection.

28 U.S.C. § 2244(d).

b. Relevant Procedural History

On June 28, 2018, following a jury trial, Petitioner was adjudicated guilty

of armed robbery and armed burglary. See Doc. 10-2 at 210-17. The trial court

sentenced him to concurrent terms of life imprisonment. See id. at 213-15.

Petitioner, through counsel, filed a direct appeal. Id. at 253. On December 31,

2019, the First District Court of Appeal issued a written opinion affirming in

part and reversing and remanding in part, with instructions that the trial court

reconsider Petitioner’s motion for a new trial under the correct standard. See

Doc. 10-11. On remand, the trial court entered an order on January 29, 2020,

denying the motion for a new trial (Doc. 10-12 at 2), and entered a “NEW”

written judgment and sentence—identical to the first judgment and sentence—

on February 6, 2020, nunc pro tunc to June 28, 2018 (id. at 3-10).3 Petitioner

did not appeal the trial court’s January 29, 2020 order denying his motion for a

new trial.

On May 20, 2020 (mailbox rule), Petitioner filed a motion to clarify his

sentence. See Doc. 10-13. On June 4, 2020, the trial court construed the motion

as being filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and

summarily denied the motion. See Doc. 10-14. Petitioner did not appeal.

In September 2020, Petitioner filed two notices of inquiry with the trial

court. First, on September 4, 2020 (mailbox rule), Petitioner filed a “Notice of

Inquiry,” asking whether the trial court had issued a ruling following the First

DCA’s December 31, 2019 remand. See Doc. 10-15. He advised: “I have not

3 It appears the trial court took the first seven pages of the original 2018 judgment

and on the first page wrote: “NEW” judgment and “Re-record to reflect new judgment

per 1st DCA mandate dated 1/21/20.” Doc. 10-12 at 3. Then on the last page, the judge

signed the judgment and dated it February 6, 2020, nunc pro tunc to June 28, 2018.

Id. at 10. To add another date into the mix, the first page of the “NEW” judgment

contains a filed stamp from the clerk’s office dated January 29, 2020. Id. at 3. The

Court uses the judge’s signature date (February 6, 2020) when describing this

document.

rec[ei]ved any paperwork, notice, ruling e[tc]. up to this date and I am confused

as to if this issue has been accident[all]y overlooked, is still pending for a ruling,

or if [I’]m waiting for a transport order so I can be present for the ruling on my

motion for new trial.” Id. at 2. Second, on September 23, 2020 (mailbox rule),

Petitioner filed another “Notice of Inquiry,” requesting “the status of [his]

appeal that was reversed by the District Court of Appeal in case number 1D18-

3208.” Doc. 10-16.

On May 20, 2021 (mailbox rule), Petitioner filed a pro se motion pursuant

to Florida Rule of Criminal Procedure 3.850. See Doc. 10-17 at 5-19. The trial

court summarily denied the motion on June 30, 2021.4 See id. at 20-260; Doc.

10-18 at 2-246. Petitioner appealed, and the First DCA per curiam affirmed the

denial of his Rule 3.850 motion without issuing a written opinion. See Doc. 10-

21 at 2-3. The mandate issued on April 26, 2022. See id. at 4.

Petitioner filed the instant case on September 16, 2022.

c. Timeliness Analysis

This Court must first determine whether Petitioner’s February 6, 2020

“NEW” judgment and sentence, that the trial court entered “nunc pro tunc” to

June 28, 2018, constitutes a “new” judgment and thus restarts Petitioner’s one-

4 The judge signed the order on June 25, 2021; the order was filed with the clerk on

June 30, 2021; and a copy of the order was mailed to Petitioner on July 1, 2021. Doc.

10-17 at 20, 29. Under Florida law, “[a]n order is rendered when a signed, written

order is filed with the clerk of the lower tribunal.” Fla. R. App. P. 9.020(h).

year limitations period under § 2244. In Osbourne v. Sec’y, Fla. Dep’t of Corr.,

968 F.3d 1261 (11th Cir. 2020), the Eleventh Circuit held that the trial court’s

2014 “amended sentence,” which deleted a ten-year mandatory minimum on

one count, “was not a ‘new judgment’ for purposes of 28 U.S.C. § 2244(b)”

because the state court imposed the “amended sentence” nunc pro tunc to the

date of the original 2003 judgment, and thus the district court lacked

jurisdiction over the petitioner’s unauthorized second or successive habeas

petition. Id. at 1263, 1266-67. The Court emphasized that “not every action that

alters a sentence necessarily constitutes a new judgment” and recognized that

it previously “rejected the argument that the test for whether there is a new

judgment for purposes of § 2244 should be whether the prisoner’s sentence ‘has

materially changed.’” Id. at 1265, 1266 (summarizing Patterson v. Sec’y, Fla.

Dep’t of Corr., 849 F.3d 1321, 1325-28 (11th Cir. 2017)). Cf. Thompson v. Fla.

Dep’t of Corr., 606 F. App’x 495, 505 (11th Cir. 2015)5 (summarizing the court’s

relevant precedents and holding the petitioner’s resentencing resulted in a new

judgment where the trial court held “a de novo resentencing hearing [and]

5 The Court does not rely on unpublished opinions as binding precedent; however, they

may be cited in this Order when the Court finds them persuasive on a particular point.

See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022); see generally Fed.

R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding

precedent, but they may be cited as persuasive authority.”)

expressly vacated” his original sentences6). Instead, the Court found the

“determining factor” was the nunc pro tunc designation, which, under Florida

law “means ‘now for then’ and when a legal order or judgment is imposed nunc

pro tunc it refers, not to a new or de novo decision, but to the judicial act

previously taken.” Osbourne, 968 F.3d at 1266 (internal quotation marks

omitted) (distinguishing Magwood v. Patterson, 561 U.S. 320 (2010); Insignares

v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273 (11th Cir. 2014)); see Cassidy v. Sec’y,

Fla. Dep’t of Corr., 119 F.4th 1336, 1340 (11th Cir. 2024) (recognizing that

under Osbourne, “an amended sentence that a state court issued nunc pro tunc

d[oes] not constitute a new judgment because it relate[s] back to the date of the

original judgment” and “[w]hen a state court issues an amended judgment or

sentence nunc pro tunc, [Eleventh Circuit] precedent requires [the court] to

accept that designation and refrain from evaluating whether it was proper

under state law”), cert. pending, No. 24-7200 (May 14, 2025).

In light of this Eleventh Circuit precedent, the Court is required to find

that Petitioner’s February 6, 2020 judgment, issued nunc pro tunc to June 28,

2018, did not restart the federal one-year limitations period.7 Therefore,

6 The Thompson decision does not discuss the implication of a “nunc pro tunc”

designation.

7 Regardless, even if the Court found that the February 6, 2020 judgment restarted

the one-year limitations period, the Court would still find the Petition timely with

equitable and statutory tolling as explained herein.

Petitioner’s convictions and sentences became final on January 30, 2020, thirty

days after entry of the First DCA’s written opinion on direct appeal, which is

the timeframe Petitioner had to seek discretionary review in the Florida

Supreme Court. See Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (“We hold

that, for a state prisoner who does not seek review in a State’s highest court,

the judgment becomes ‘final’ on the date that the time for seeking such review

expires.”); see also Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988) (holding

that the Florida Supreme Court has subject-matter jurisdiction to review any

decision of a district court of appeal that expressly addresses a question of law

within the four corners of the opinion, even if the Florida Supreme Court

ultimately denies a petition for discretionary review).

Petitioner’s one-year limitations period began to run the next day

(January 31, 2020) and it continued to run for 110 days until Petitioner filed his

Rule 3.800(a) motion on May 20, 2020. The trial court denied that motion on

June 4, 2020. Although Petitioner did not file an appeal, his one-year

limitations period remained tolled until the expiration of the 30 days thereafter

in which he could have sought an appeal. See Fla. R. Crim. P. 3.800(a)(4)

(recognizing that a petitioner may appeal an order denying or dismissing a Rule

3.800(a) motion within 30 days); see also Cramer v. Sec’y, Dep’t of Corr., 461

F.3d 1380, 1383-84 (11th Cir. 2006) (finding that a postconviction claim

“remains pending until the time to seek review expires,” regardless of whether

the petitioner files a notice of appeal). Therefore, his one-year limitations clock

resumed on July 7, 2020.8 Three hundred seventeen days later (May 20, 2021),

Petitioner filed his Rule 3.850 motion.9 This period of time (317 days), combined

with the 110 days that already elapsed, was well over one year, meaning that

Petitioner’s one-year limitations period expired prior to him filing his Rule

3.850 motion. And because there was no time left to toll, the Rule 3.850 motion

had no effect on his one-year limitations period. See Sibley v. Culliver, 377 F.3d

1196, 1204 (11th Cir. 2004) (recognizing that “once a deadline has expired, there

is nothing left to toll”).

Petitioner acknowledges that his Petition is untimely, but he argues that

he is entitled to equitable tolling from February 6, 2020, until he filed his Rule

3.850 motion on May 20, 2021, because the trial court failed to timely send him

a copy of its January 29, 2020 order on remand denying his motion for a new

trial. See Doc. 1 at 16-17; Doc. 13 at 5-6. He also alleges that between January

1, 2020 and October 2020, “the Covid 19 pandemic raged,” which “adversely

[a]ffected the court system” and “access to the court under the Florida

Department of Corrections[’] understandable movement limitations concerning

8 The 30th day was Saturday, July 4, 2020, so Petitioner’s time to file a notice of appeal

was extended to Monday, July 6, 2020. The one-year limitations period began to run

the next day.

9 Respondents appear to assert that only 256 days passed between July 6, 2020 and

May 20, 2021, but that calculation is incorrect. Doc. 10 at 7.

its inmate population that influenced [his] ability to obtain timely information

about his pending litigation.” Doc. 13 at 6. He further states that “[g]enerally

speaking, from January 1st, 2020 through July 6, 2020, [Petitioner’s]

‘meaningful access to the courts’ was indeed disrupted, certainly diminished.”

Id.

“The United States Supreme Court has held that AEDPA’s statutory

limitations period may be tolled for equitable reasons.” Thomas v. Att’y Gen.,

992 F.3d 1162, 1179 (11th Cir. 2021). However, “equitable tolling is an

extraordinary remedy ‘limited to rare and exceptional circumstances and

typically applied sparingly.’” Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221

(11th Cir. 2017) (quoting Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.

2009)). To warrant the application of this extreme remedy, a petitioner must

show “‘(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way’ and prevented timely filing.”

Holland v. Fla., 560 U.S. 631, 649 (2010) (quoting Pace, 544 U.S. at 418). “The

petitioner has the burden of establishing his entitlement to equitable tolling;

his supporting allegations must be specific and not conclusory.” Cole v. Warden,

Ga. State Prison, 768 F.3d 1150, 1158 (11th Cir. 2014) (citation omitted); see

Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008) (“[A]n inmate bears a

strong burden to show specific facts to support his claim of extraordinary

circumstances and due diligence.” (citation omitted)).

Initially, the Court finds that with respect to Petitioner’s assertions that

the Covid-19 pandemic negatively affected his ability to access the courts, he

fails to support that conclusory statement with any facts. Thus, he fails to carry

his burden of showing that the pandemic adversely affected his ability to timely

file this case.

But his other arguments are well taken. Neither the trial court’s January

29, 2020 order on remand nor the February 6, 2020 written judgment and

sentence contain a certificate of service, and the trial court’s public docket does

not reflect that a copy of either document was mailed to Petitioner. It is clear

from Petitioner’s state court filings that he was under the impression the trial

court did not issue a ruling on remand or send him a copy of said ruling.

The trial court’s docket reflects that Petitioner filed a request for

documents on May 13, 2020 (mailbox rule), seeking a copy of his judgment of

conviction and sentence for purposes of preparing an application for clemency.10

Shortly thereafter, on June 4, 2020, the trial court denied his Rule 3.800(a)

motion, and in doing so, it relied on and attached as an exhibit Petitioner’s

original June 28, 2018 judgment. See Doc. 10-14 at 40-47.

10 Petitioner’s request for documents is not included in the record. The Court takes

judicial notice of the document from the state court’s docket. See, e.g., Paez v. Sec’y,

Fla. Dep’t of Corr., 947 F.3d 649, 651 (11th Cir. 2020) (per curiam) (finding the district

court properly took judicial notice of the petitioner’s state court dockets). For ease of

reference, the Court attaches a copy of the document to this Order.

Approximately three months later, Petitioner filed his two notices of

inquiry. But “the Clerk’s response failed to provide the information sought.”

Doc. 1 at 17. When Petitioner filed his Rule 3.850 motion on May 20, 2021, he

argued that the trial court “did not rule on and/or provide certified copies of” its

order on remand. Doc. 10-17 at 14. He further acknowledged, however, that the

trial court “did send a ‘new’ judgment and sentence when inquired upon,” but

“mistakenly forwarded a copy of ‘A’ denial of a different ‘motion for clarification’

which has nothing to do with the matter.” Id. at 15. The First DCA issued its

mandate on appeal from Petitioner’s Rule 3.850 proceeding on April 26, 2022.

Doc. 10-21 at 4. Four months later, Petitioner filed this case.

As noted, Petitioner acknowledges that at some point, possibly in

response to his May 18, 2020 request for documents, he did receive a copy of the

“NEW” judgment and sentence. But the trial court, in its June 2020 order

denying his Rule 3.800(a) motion added to the apparent confusion by relying on

the original judgment.

The Court finds that the trial court’s failure to timely send Petitioner a

copy of the order on remand and new judgment were circumstances beyond his

control, and Petitioner acted with due diligence in pursuing his rights by

making efforts to learn the status of the trial court’s actions following the First

DCA’s remand. Based on the record before the Court, it appears the trial court

did not explicitly advise Petitioner that it denied his motion for a new trial on

remand until it denied his Rule 3.850 motion. Thus, given the specific facts of

this case, the Court finds Petitioner is entitled to equitable tolling from

February 6, 2020, the date on which the judge signed the “NEW” judgment,

until May 20, 2021, the date on which he filed his Rule 3.850 motion. With

equitable and statutory tolling, his Petition is timely filed. As such, the Court

addresses the merits of Petitioner’s claims.

III. Merits Discussion

a. Governing Legal Authority

i. 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). “‘The purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems,

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.

34, 38 (2011)).

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

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

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

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

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

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

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that does

provide a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning. But the

State may rebut the presumption by showing that the

unexplained affirmance relied or most likely did rely on

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

as alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the record it

reviewed.

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

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

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

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

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

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

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

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

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

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that state-

court decisions be given the benefit of the doubt.” Renico v.

Lett, 559 U.S. 766, 773 (2010) (internal quotation marks

omitted). “A state court’s determination that a claim lacks

merit precludes federal habeas relief so long as fairminded

jurists could disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

(internal quotation marks omitted). “It bears repeating that

even a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Id. [at 102] (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The Supreme

Court has repeatedly instructed lower federal courts that an

unreasonable application of law requires more than mere

error or even clear error. See, e.g., Mitchell v. Esparza, 540

U.S. 12, 18 (2003); Lockyer, 538 U.S. at 75 (“The gloss of

clear error fails to give proper deference to state courts by

conflating error (even clear error) with unreasonableness.”);

Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n

unreasonable application of federal law is different from an

incorrect application of federal law.”).

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

citations modified).

ii. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants the effective

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

performance falls below an objective standard of reasonableness and thereby

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

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and 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.

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

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

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

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

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

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

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

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

be followed.” 466 U.S. at 697.

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

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

that determination was unreasonable - a substantially higher threshold.”

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

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

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

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

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

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

representation was ‘within the wide range of reasonable professional

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

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

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

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

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

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

2004).

b. Trial Testimony

On direct appeal, Petitioner, through counsel, summarized the evidence

and testimony submitted at trial as follows:

Ms. Ethel Anderson lived by herself in her home at

1268 Kennard Street, Jacksonville, in Duval County. In May

of 2016, Ms. Anderson kept a bank envelope in a plastic

produce bag. The envelope contained nearly $9000. The bag,

envelope and money were kept in Ms. Anderson’s bathroom

between folded towels in a laundry hamper.

On May 11th, 2016, Ms. Anderson was visited at her

home by Kristina Bowden. Ms. Anderson knew Ms. Bowden

because she had formerly dated Ms. Anderson’s cousin. Ms.

Bowden stayed for about an hour. She behaved erratically

while she visited Ms. Anderson, moving around the home

from the living room to the kitchen. After the visit, Ms.

Anderson checked the towels in the bathroom and found the

produce bag undisturbed; however[,] Ms. Anderson’s

hydrocodone pills she kept in the kitchen were missing.

In the early morning hours of May 12th, 2016, Ms.

Anderson was in bed asleep. She was awakened by two men,

one black and one white. The black man was armed with a

shotgun. The white man repeatedly asked where the money

and where the safe were. Although their faces were visible,

Ms. Anderson did not recognize either man. The two men

began to search through Ms. Anderson’s house while she

remained in bed. She believed she heard them counting

money. Eventually she heard them leaving the home.

After the two men left, Ms. Anderson went to the

neighbor’s house. She noticed her car, a 1997 Buick, was

missing from her driveway. She kept the keys to her car in

her pocket book which was in the living room of her home.

Her pocket book with the keys was missing also.[]

When the police arrived, Ms. Anderson returned to her

home. She found a number of items missing, including a

television, a computer and her clothes hamper.

Ms. Anderson later realized the money she had in the

envelope in the produce bag was missing when she saw

towels strewn all over her bathroom floor. The empty

produce bag was found on the floor in the hallway by Ms.

Anderson. It was not seen by the crime scene technician as

she photographed the home.

Detective James Hop[el]y of the Jacksonville Police

Department (J.S.O.) collected the produce bag and a bank

envelope as evidence when he arrived on scene at 5:00 p.m.

the same day. It was given to him by a male friend of Ms.

Anderson while the Detective was at Ms. Anderson’s home.

Det. Hop[el]y requested the bank envelope and exterior of

the produce bag be processed for latent prints by the J.S.O.’s

fingerprint lab. While there were no fingerprints recovered

from the bank envelope, there were two latent prints

recovered from the produce bag. A latent palm print and a

latent finger print recovered from the produce bag matched

prints taken from Derek Clayton Smith.

A hat the white male was wearing and left behind was

also collected as evidence from the foot of Ms. Anderson’s

bed. The hat was swabbed for DNA, along with the front door

knob and the bedroom dresser handles. The DNA samples

from the hat, the door knob and the dresser handles were

tested by the Florida Department of Law Enforcement. The

results were not interpretable.

Prior to the burglary, Ms. Anderson did not know

anyone by the name of Derek Clayton Smith. She was not

able to identify a photograph of Mr. Smith administered by

Det. Hopely.

Det. Hopely showed Ms. Anderson a photo of Ms.

Bowden, which she [was] able to identify by name as the

woman who visited her home the day before the burglary.

SG Motors was a car dealership in Jacksonville, owned

by Shuwan Goodman. Ms. Goodman’s sales person was her

fiancé, Torrence McGauley. On May 14th, 2016, a woman

came to SG Motors, executed a contract and paid $2700 cash

for a 2005 Pontiac Bonneville, using the name Kristina

Bowden. Ms. Goodman later identified a photograph of Ms.

Bowden during a photospread by Det. Hopely.

A man accompanied Ms. Bowden to SG Motors on the

14th. He remained outside in the lot with Mr. McGauley

while Ms. Bowden transacted the purchase of the Bonneville

inside the dealership. Mr. McGauley took a picture of the

man standing next to the Bonneville to post on Facebook

that date. Mr. McGauley later identified a photograph of

Derek Clayton Smith as the man with Ms. Bowden on May

14th in a photospread conducted by Det. Hopely.

Mrs. Anderson’s 1997 Buick was eventually found on

August 12th, 2016, behind an abandon[ed] residence in

Jacksonville. The car had been stripped of tires, some engine

components and a door.[] Mr. Smith’s fingerprints and DNA

were not found on Ms. Anderson’s Buick.

Doc. 10-5 at 10-14 (internal record citations and footnotes omitted).

c. Merits Analysis

i. Ground One

Petitioner argues that his trial counsel was ineffective when he “failed to

cross-examine state witness via defense of impeachment, inconsistent

statements” and by failing “to object and suppress evidence”—the plastic bag

with his fingerprint—“by establishing a break in the chain of custody which

tainted [the] state’s only material evidence.” Doc. 1 at 7. He explains that during

the trial, Detective Hopely testified that the victim’s “male friend[,] who was

accompanying the female” at the victim’s home, “got up and walked out of his

sight and returned moments later with the items in his possession.” Id.

According to Petitioner, “[t]his assertion contradicts the initial redacted police

report submitted by Detective Hopely where he stated that he collected the

items from the floor.” Id. Despite Petitioner making counsel aware of the

inconsistency, “[c]ounsel failed to act promptly and impeach” Detective Hopely.

Id. Petitioner argues that if this evidence would have been excluded, the

outcome of his trial would have been different. Id. at 8.

Petitioner also challenges counsel’s failure “to object and suppress the

state’s evidence of the plastic bag containing his fingerprint” during the trial.

Id. He contends that he made his “[c]ounsel aware of the significant

discrepancies in the witness[’] testimony, the gap in the chain of custody

indicating the possibility of tampering and tainting of the only physical

evidence,” but his counsel failed to object or move to suppress the evidence. Id.

Petitioner raised similar allegations in his Rule 3.850 motion. He argued

that his counsel failed to impeach the witness on his inconsistent statements

and the inconsistency substantiated subsequent suppression of the evidence

which was necessary for his conviction. Doc. 10-17 at 10. He asserted that his

counsel’s failure to impeach the witness “and/or suppress evidence falls far

below the parameters of expected and sufficient performance by counsel.” Id. at

11.

The postconviction court summarily denied the claim as follows:

In Ground One of his motion, the Defendant alleges

Defense Counsel failed to impeach the testimony of

Anderson and Detective Hopely. The claim is refuted by the

record.

The trial record shows that Defense Counsel did what

Defendant now alleges he failed to do. During cross-

examination, Defense Counsel attacked numerous aspects of

Anderson’s testimony. He used the State’s crime scene

photographs to question Anderson’s account of exactly where

she discovered the empty plastic bag. He attempted to

demonstrate inconsistencies about the amount of money

that Anderson said she kept in the plastic bag. He cited

Anderson’s deposition to suggest that she provided

contradictory accounts of who knew that she stored cash at

her home. When cross-examining Detective Hopely, Defense

Counsel inquired about items of evidence that were not

reflected in crime scene photographs and reports.

Furthermore, the Defendant alleges that he asked

Defense Counsel to inquire about various inconsistencies in

the witnesses’ testimonies, but that Defense Counsel failed

to do so. However, at the conclusion of Defense Counsel’s

cross-examination of Anderson, the trial court directed

Defense Counsel to confer with the Defendant to confirm

there were no additional questions that Defense Counsel

needed to ask. After doing so, Defense Counsel confirmed he

had no additional questions for the witness. Defense Counsel

likewise conferred with the Defendant after cross-examining

Detective Hopely. During his colloquy with the trial court,

the Defendant swore he was satisfied with Defense Counsel’s

cross-examinations. The Defendant’s sworn colloquy

contained the following exchange:

THE COURT: Okay. Next, I’m going to talk

to you about the defense that has been presented

on your behalf. Are you satisfied with the

defense that your attorney has put forth on your

behalf?

THE DEFENDANT: Yes, ma’am.

THE COURT: Has he called all the witnesses --

has he done the investigation as you have asked him

to do?

THE DEFENDANT: Yes, ma’am.

THE COURT: He has indicated that there are

no witnesses for the defense. Is that your

understanding?

THE DEFENDANT: Yes, ma’am.

THE COURT: Is that your agreement?

THE DEFENDANT: Yes, ma’am.

THE COURT: Are there any witnesses that you

want him to call that he has not called?

THE DEFENDANT: No, ma’am.

THE COURT: Has he cross-examined all of

the State’s witnesses as you have asked him to

do?

THE DEFENDANT: Yes, ma’am.

THE COURT: Have you had enough time to

speak with him about all of the matters as it relates to

your case and your jury trial?

THE DEFENDANT: Yes, ma’am.

THE COURT: Has he answered your questions

to your complete satisfaction and understanding?

THE DEFENDANT: Yes, ma’am.

THE COURT: Have you told him everything you

want him to know about your case?

THE DEFENDANT: Yes, ma’am.

THE COURT: Do you need any more time to

have any discussions before we proceed to closing

arguments and jury instructions.

THE DEFENDANT: No, ma’am.

THE COURT: Are you completely satisfied

with his representation?

THE DEFENDANT: Yes, ma’am.

The Defendant alleges he asked Defense Counsel to

pose additional questions during cross-examination.

However, the portions of the record cited above - including

the Defendant’s attestation that Defense Counsel’s cross-

examination of the State’s witnesses comported with the

Defendant’s desires - conclusively refute this allegation. As

such, the Defendant is not entitled to relief. See Kelley v.

State, 109 So. 3d 811, 812-13 (Fla. 1st DCA 2013) (“A rule

3.850 motion cannot be used to go behind representations

the defendant made to the trial court, and the court may

summarily deny post-conviction claims that are refuted by

such representations.”); Henry v. State, 920 So. 2d 1245,

1246 (Fla. 5th DCA 2006) (“Defendants are bound by the

statements made by them under oath . . . .”); Manning v.

State, 305 So. 3d 355, 356-57 (Fla. 1st DCA 2020)

(“Manning’s second claim, that her counsel was ineffective

for not moving for a change of venue, is also refuted by the

record. When Manning entered her plea, she knew that her

counsel had not moved for a change of venue. Yet she swore

under oath that she was satisfied with her counsel’s services.

This attestation prevents her from complaining now of her

counsel’s performance.”).

Finally, the full body of evidence the State presented

against the Defendant - including the presence of his

fingerprints on the plastic bag from the crime scene - shows

there is no reasonable probability that Defense Counsel

could have altered the trial’s outcome by asking additional

questions during cross-examination of the State’s witnesses.

Accordingly, the Defendant cannot demonstrate the

prejudice that Strickland demands. For the reasons set forth

above, the Court summarily denies Ground One of the

Defendant’s motion.

Doc. 10-17 at 24-27 (emphasis added; internal record citations omitted).

Petitioner appealed the postconviction court’s denial of this claim (see Doc. 10-

19), and the First DCA per curiam affirmed the postconviction court’s decision

without issuing a written opinion. See Doc. 10-21.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications and finds that the

record supports the state court’s decision. Thus, upon thorough review of the

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

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

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

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

evidence presented. Therefore, Petitioner is not entitled to federal habeas relief

on Ground One.

Even assuming the state court’s decision is not entitled to deference, the

claim has no merit. Petitioner’s instant claim cannot be reconciled with his

sworn statements to the trial court that he was satisfied with his counsel’s

representation, including counsel’s cross-examination of the state’s witnesses.

Cf. Blackledge v. Allison, 431 U.S. 63, 74 (1977) (recognizing that a defendant’s

statements at a plea hearing “constitute a formidable barrier in any subsequent

collateral proceedings” because “[s]olemn declarations in open court carry a

strong presumption of verity”).

Moreover, there is a strong presumption in favor of competence when

evaluating the performance prong of the Strickland ineffectiveness inquiry. See

Anderson v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 881, 904 (11th Cir. 2014). The

inquiry is “whether, in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.”

Strickland, 466 U.S. at 690. “[H]indsight is discounted by pegging adequacy to

‘counsel’s perspective at the time’ . . . and by giving a ‘heavy measure of

deference to counsel’s judgments.’” Rompilla v. Beard, 545 U.S. 374, 381 (2005).

Thus, Petitioner must establish that no competent attorney would have taken

the action that his counsel chose.

Notably, the test for ineffectiveness is neither whether counsel could have

done more nor whether the best criminal defense attorneys might have done

more; in retrospect, one may always identify shortcomings. Waters v. Thomas,

46 F.3d 1506, 1514 (11th Cir. 1995) (“[P]erfection is not the standard of effective

assistance.”). Instead, the test is whether counsel’s actions were within the wide

range of reasonable professional assistance. Ward, 592 F.3d at 1164; Dingle v.

Sec’y for Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (“The question is

whether some reasonable lawyer at the trial could have acted as defense counsel

acted in the trial at issue and not what most good lawyers would have done.”

(internal quotation marks and citation omitted)).

It cannot be said that no reasonable lawyer would have acted in the

manner Petitioner’s counsel did. And the trial court’s colloquy with Petitioner

reflects that Petitioner was completely satisfied with his counsel’s performance,

including the cross-examination of the state’s witnesses. Regardless, Petitioner

has not shown prejudice. During cross-examination, Detective Hopely testified

that the male friend who was accompanying the female relative at the victim’s

home walked out of his sight and then returned with a plastic bag and a bank

envelope. Doc. 10-4 at 170. Then on re-direct, Detective Hopely explained that

he directed the individual to drop the items on the floor so Detective Hopely

could put on latex gloves and collect the items for evidence. Id. at 175. Even

taking Petitioner’s assertions in the Petition as true, had counsel attempted to

impeach Detective Hopely on cross-examination with his alleged statement in

a police report “where he stated that he collected the items from the floor,” the

detective likely would have given the same answer as he did on re-direct—that

he instructed the individual to place the items on the floor so he could collect

them. Thus, there was no inconsistency between Detective Hopely’s alleged

statement in the police report and his trial testimony regarding from where he

collected the evidence.

Likewise, counsel was not deficient for failing to file a motion to suppress

during the trial. A typical “chain of custody” issue arises when the chain is

broken between the seizure of the evidence and a subsequent trial. See United

States v. White, 569 F.2d 263, 266 (5th Cir. 1978). Here, however, Petitioner

alleges that the “break” in the “chain of custody” occurred between the time the

crime scene investigator left the scene and Detective Hopely’s arrival on scene

when he collected the subject evidence. Petitioner suggests that because the

crime scene was not in the custody of law enforcement between the time the

crime scene investigator left and the time Detective Hopely arrived, there was

a break in the chain of custody.

“Relevant physical evidence is admissible unless there is an indication of

probable tampering.” Armstrong v. State, 73 So. 3d 155, 171 (Fla. 2011)

(internal quotations and citations omitted). “In order to demonstrate probable

tampering, the party attempting to bar the evidence must show that there was

a probability that the evidence was tampered with—the mere possibility is

insufficient.” Id. Florida law is clear that “a broken chain of custody alone is

[not] enough by itself to establish probable tampering.” Overton v. State, 976

So. 2d 536, 552 (Fla. 2007).

Petitioner’s argument does not suggest probable tampering. Petitioner’s

speculation is insufficient; thus, counsel would not have prevailed on a motion

to suppress. Counsel elicited from Detective Hopely on cross-examination that

the crime scene investigator did not photograph or take custody of the plastic

bag when she went through the home earlier and that the home had not been

in the care, custody, or control of law enforcement for a period of time before

Detective Hopely arrived. Doc. 10-4 at 169-71. Petitioner’s counsel highlighted

during closing argument the fact that the bag was not initially discovered at the

scene by the crime scene investigator or law enforcement until it was given to

Detective Hopely later that day by the victim’s relative’s friend. See id. at 298-

99. Counsel further highlighted that the state failed to prove how the bag got

into the victim’s home, including addressing how Petitioner’s girlfriend was in

the home the day before for apparent nefarious reasons. See id. at 300-01, 306-

37. Counsel also argued that the state failed to show when Petitioner’s

fingerprints were placed on that bag. See id. at 304-06. The testimony Petitioner

cites to would not have supported a motion to suppress the plastic bag with his

fingerprint on it. Instead, counsel used the unknown variables relating to the

plastic bag in his closing argument to suggest that Petitioner was not guilty.

Upon review, the Court finds that Ground One is due to be denied.

ii. Ground Two

Petitioner argues that the state court violated his Fifth and Fourteenth

Amendment rights “where Petitioner was denied his right to appeal.” Doc. 10

at 10 (capitalization and emphasis omitted). According to Petitioner, on

January 29, 2020, the trial court issued a ruling on remand denying his motion

for a new trial, but the court never sent Petitioner a copy of the order. See id. at

10-12. Petitioner contends that he raised two claims in his Rule 3.850 motion

relating to this issue, and he “stressed that under such circumstances he was

denied his right to appeal.” Id. at 11. He asserts that he requested the First

DCA “to treat the brief and arguments . . . as a petition for belated appeal and

to render him an opportunity to appeal.” Id. at 12.

In Petitioner’s Rule 3.850 proceeding, the postconviction court found that

(1) Petitioner suffered no prejudice from his counsel’s failure to object when the

trial court used the wrong standard on his motion for new trial because the First

DCA remanded on that issue and the trial court issued a new ruling; and (2) no

fundamental error occurred, because the trial court ruled on the motion for new

trial on remand as directed by the First DCA. Doc. 10-17 at 28. Petitioner

appealed, arguing in terms of state law only that the postconviction court did

not have subject matter jurisdiction to rule on his claims because a request for

a belated appeal must be decided by the First DCA. See Doc. 10-19 at 23-24.

The First DCA per curiam affirmed without issuing a written opinion. Doc. 10-

21.

Even though Petitioner attempts to frame this argument—that the First

DCA did not treat his initial brief as a motion for a belated appeal—as an issue

of federal constitutional law, at bottom, it is an issue of state law. The purpose

of a federal habeas proceeding is to review the lawfulness of Petitioner’s custody

to determine whether that custody is in violation of the Constitution or laws of

the United States. Coleman v. Thompson, 501 U.S. 722, 730 (1991). “Indeed,

questions of state law rarely raise issues of federal constitutional significance

and, therefore, ‘[a] state’s interpretation of its own laws or rules provides no

basis for federal habeas corpus relief, since no question of a constitutional

nature is involved.’” Sneed v. Fla. Dep’t of Corr., 496 F. App’x 20, 24-25 (11th

Cir. 2012) (quoting Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th

Cir.1983)). Because Petitioner is challenging the state court’s interpretation of

state law, this Court on federal habeas review cannot provide him with relief.

Accordingly, it is

ORDERED:

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

WITH PREJUDICE.

2. The Clerk of Court shall enter judgment dismissing this case with

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

3. If Petitioner appeals, 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.!!

DONE AND ORDERED at Jacksonville, Florida, this 27+» day of June

2025.

a Gotha Corrigan

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

JAX-3 6/20

Attachment: Request for Documents

c (w/ attachment):

Derek C. Smith, #J35411

Counsel of Record

11 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, Petitioner “must demonstrate that reasonable jurists

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

wrong,’ Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529

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

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

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration of

the record as a whole, the Court will deny a certificate of appealability.

3l