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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL ADIB ABDALLAH,

Petitioner,

v. Case No. 3:22-cv-411-TJC-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Michael Adib Abdallah, an inmate of the Florida penal system,

initiated this action, with help from counsel, by filing a Petition for Writ of

Habeas Corpus Pursuant to 28 U.S.C. § 2254. See Doc. 1. He is proceeding on

an Amended Petition. See Doc. 3. He challenges a state court (Duval County,

Florida) judgment of conviction for conspiracy to traffic in controlled

substances. He is serving an eighteen-year term of incarceration. Respondents

filed a Response. See Doc. 6 (Resp.).1 And Petitioner filed a Reply. See Doc. 8.

1 Attached to the Response are various exhibits (Docs. 9-1 to 9-25). The Court

refers to the exhibits as “Resp. Ex.”

This case is ripe for review.2

II. Governing Legal Principles

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

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

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

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

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

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

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

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

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

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

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

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

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

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

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

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

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

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

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

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

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

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

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

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

deference to state courts by conflating error (even clear

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

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

application of federal law is different from an incorrect

application of federal law.”).

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

citations modified).

B. Exhaustion and Procedural Default

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

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

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

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

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

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

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

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

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

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

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

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

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

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

“‘opportunity to pass upon and correct’ alleged

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

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

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

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,” the

prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[3] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[4] supra, at 84–85, 97 S. Ct.

2497. A state court’s invocation of a procedural rule to

deny a prisoner’s claims precludes federal review of the

claims if, among other requisites, the state procedural

rule is a nonfederal ground adequate to support the

judgment and the rule is firmly established and

consistently followed. See, e.g., Walker v. Martin, 562

U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179 L.Ed.2d 62

(2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct. 612,

617–618, 175 L.Ed.2d 417 (2009). The doctrine barring

procedurally defaulted claims from being heard is not

without exceptions. A prisoner may obtain federal

review of a defaulted claim by showing cause for the

default and prejudice from a violation of federal law.

See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.

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

excused under certain circumstances. Notwithstanding that a claim has been

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

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

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

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

prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

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

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

raising the claim and which cannot be fairly

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

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

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

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

actually and substantially disadvantaged his defense

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

1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

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

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

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive

consideration on the merits of his procedurally

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

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

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

exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001).

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

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

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

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

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

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

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

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

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

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants effective

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

performance falls below an objective standard of reasonableness and thereby

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

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

Notably, 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.

“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 Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting

Strickland, 466 U.S. at 689). “When this presumption is combined with §

2254(d), the result is double deference to the state court ruling on counsel’s

performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. Factual and Procedural History

The following summary of the trial proceedings is taken from Petitioner’s

initial brief filed on direct appeal:

Sandra Medlin. Ms. Medlin testified that she is a detective

with the Jacksonville Sheriff’s Office. Detective Medlin testified

that she was part of a wiretap investigation named “Crooked

Letter” which was conducted between February and June of 2015.

Detective Medlin testified that she and Detective Hanson became

involved with the Crooked Letter investigation when Gino Arthur,

a suspect they were investigating for cocaine distribution in Duval

County, became a target of Crooked Letter. Detective Medlin

testified that through the investigation it was determined that Gino

Arthur was distributing large amounts of cocaine, transported from

Atlanta, Georgia by Leroy Lucas, in Jacksonville. Detective Medlin

testified that of all of the members identified by the investigation,

only two were from Jacksonville, Gino Arthur and Leroy Lucas.

Detective Medlin testified that Willie Davis, Lamar Battle, and

Michel Abdallah were identified by the investigation as being part

of the alleged drug conspiracy. Detective Medlin testified with the

help of a visual aid as follows:

This is a --what we call our ladder to the Georgia leg of

the investigation of Crooked Letter. It started with

Gino Arthur and Leroy Lucas who ran cocaine through

Duval County. Leroy Lucas worked for Gino Arthur

and sold cocaine and took care of the trap houses. We

were able to identify Lamar Battles as the individual

who would transport cocaine to Jacksonville to Leroy

Lucas or Gino Arthur and transport money back to

Georgia from the sale of that cocaine.

Willie Davis and Gary Alexander were the ones that

arranged the purchase and delivery of the cocaine and

the return of the money. Willie Davis and Gary

Alexander were basic partners. If Willie Davis would

provide the cocaine to be transported to Jacksonville[,]

Gary Alexander would get money per kilo for that

shipment. If Gary Alexander provided it[,] Willie Davis

in turn would get money for that delivery to

Jacksonville of the cocaine.

We identified Mr. Abdallah as the supplier to Willie

Davis of the cocaine. When Mr. Abdallah was not able

to provide the cocaine to be delivered to Jacksonville[,]

Gary Alexander would call his supplier who we were

not able to identify during the investigation.

Detective Medlin testified that Abdallah lived just outside Atlanta

on Falcon Crest.

Detective Medlin testified that for the duration of the

investigation[,] Abdallah kept the same phone number. Detective

Medlin testified that from the time his number came up in the

investigation till the investigation ended was less than 60 days.

John Hanson. Mr. Hanson testified that he is a detective

with the Jacksonville Sheriff’s office. Mr. Hanson stated that he

assisted Detective Medlin with the surveillance in Operation

Crooked Letter. Detective Hanson testified that he surveilled a

house in Duval County with an address of 6663 Vermillion and he

observed Lamar Battle, Gino Arthur, and Leroy Lucas at that

house, but not Willie Davis or Abdallah. Detective Hanson testified

that he never followed Lamar Battle into Jacksonville, but he did

follow him to a house in Union City, Georgia. Detective Hanson

testified that Abdallah lived at 2608 Falcon Nest Court in Georgia

and he surveilled him at that location. Detective Hanson identified

Abdallah in the courtroom as the man that resided at 2608 Falcon

Nest Court. Detective Hanson identified in a photograph

introduced as state’s exhibit 6 Lamar Battle, Willie Davis, and

Abdallah at the rear of the Yukon while it was parked at Abdallah’s

house.

Lamar Battle. Mr. Battle testified that he is in custody for

conspiracy to traffic cocaine and is awaiting sentencing. Mr. Battle

testified that prior to being arrested he was living in Edison,

Georgia and previously Fort Gaines, Georgia. Mr. Battle testified

that Leroy Lucas lived in Jacksonville, Gino Arthur lived in

Jacksonville, Willie Davis lived in Fort Gaines, Georgia, and

Abdallah lived in Atlanta. Mr. Battle testified that there were two

groups, one in Jacksonville and one in Georgia. Mr. Battle testified

that he was the carrier and he would get the cocaine from Abdallah

at the direction of Willie Davis in exchange for $750 per kilogram

of cocaine. Mr. Battle testified that Abdallah never made any of the

trips with him. Mr. Battle testified that he would pick up the money

from either Leroy Lucas or Gino Arthur in Jacksonville and then

take it to a house in Union City, Georgia owned by Gary Alexander.

Mr. Battle testified that they used the house in Union City to count

the money. Mr. Battle testified that Willie Davis was the one who

coordinated the cocaine purchases. Mr. Battle testified that Willie

Davis was getting cocaine from Abdallah or Gary Alexander. Mr.

Battle testified that he only picked up cocaine from Abdallah at

Abdallah’s house. Mr. Battle testified that after picking up the

cocaine he would go to the house in Union City to load the Cocaine

in the trap and shrink-wrap it. Mr. Battle testified that he never

drove directly from Abdallah’s house to Jacksonville, he always

stopped in Union City, Georgia. Mr. Battle testified that on the day

he was arrested he was coming from Edison, Georgia.

Mr. Battle testified that Gino Arthur, Lamar Battle, Gary

Alexander and Willie Davis met at the house in Union City in

February of 2015. Mr. Battle testified that after repackaging the

drugs in Union City he would go to his hometown in Georgia so that

Willie Davis could buy some of them. Mr. Battle testified that the

agreement to transport drugs from Georgia to Florida was between

Gino Arthur, Leroy Lucas, Gary Alexander, Willie Davis, and

himself; Abdallah was not part of the agreement. Mr. Battle

testified that Abdallah merely sold drugs to him and had no

knowledge that the drugs were going to Florida. Mr. Battle testified

that Abdallah never paid him anything to transport the drugs.

Troy Wolfer. Mr. Wolfer testified that he works for the

Florida Department of Law Enforcement as a crime laboratory

analyst. Mr. Wolfer identified the substance collected from Lamar

Battle upon his arrest was cocaine.

Willie Davis. Mr. Davis testified he is in custody for

conspiracy to traffic cocaine and is awaiting sentencing. Mr. Davis

testified that Gino Arthur, Lamar Battle, Gary Alexander, Leroy

Lucas, and himself had a meeting in February of 2015 at which they

planned how their organization would send cocaine to Florida. Mr.

Davis testified that the five of them agreed to contribute to the rent

for the house in Union City. Mr. Davis testified that the

participants in the drug operation used code names to obscure their

identity, but Mr. Abdallah did not. Mr. Davis testified that

Abdallah never went to the house in Union City.

Mr. Davis testified that Mr. Abdallah was one of his suppliers

of cocaine. Mr. Davis testified that he would get cocaine from Gary

Alexander if he couldn’t get cocaine from Abdallah. Mr. Davis

testified that Abdallah did not go to Jacksonville. Mr. Davis

testified that Abdallah did not know Gino Arthur or Leroy Lucas.

Mr. Davis testified that he was “the brains” of the operation. Mr.

Davis testified that when Gino Arthur or Leroy Lucas wanted to

purchase cocaine[,] they would call him first and if he couldn’t get

any cocaine they would get it from Gary Alexander. Mr. Davis

testified that Abdallah never went to Florida to pick up money. Mr.

Davis testified that the money never went straight from

Jacksonville to Abdallah, it always went through Union City or Fort

Gaines[,] Georgia. Mr. Davis testified that he coordinated where

Lamar Battle was driving. Mr. Davis testified that when the

cocaine was received from Abdallah it was not properly packaged

for transport, it was simply wrapped to separate the kilograms. Mr.

Davis testified that the cocaine was never packaged in Abdallah’s

garage. Mr. Davis testified that Abdallah never rented or bought a

car for Mr. Battle to drive to Florida. Mr. Davis testified that he

gave cell phones to everybody in the organization including Lamar

Battle, Gino Arthur, and Gary Alexander; he never gave Abdallah

a phone. Mr. Davis testified that he was not in a conspiracy with

Abdallah.

Following Mr. Davis’s testimony, the State rested. The

defense called no witnesses.

. . . .

At the charge conference, Abdallah’s counsel asked the Court

to modify the standard conspiracy jury instruction to include the

following bolded phrase:

. . . the intent of Michel Adib Abdallah that the offense

of trafficking in controlled substances would be

committed, resulting in drugs being brought into

the State of Florida.

The State responded that they would “default to the standard

instruction.” The court responded as follows:

I think I’m going to just leave it the way it is. That’s the

standard instruction. I understand what you – your –

the defense is. It’s addressed under the trafficking

definition, the very next paragraph below that where it

says it has – is to be brought into Florida.

Abdallah’s counsel responded that the second part of the

instruction, which reads as follows:

The offense of trafficking in cocaine is defined as

follows: One, a person knowingly possessed, sold,

purchased, manufactured, delivered, or brought into

Florida a certain substance.

would not cure the defect because, based on the standard jury

instructions alone, Abdallah could be convicted for simply

conspiring to possess or sell cocaine in Georgia without any

intention of bringing it into Florida.

Resp. Ex. G (record citations omitted).

In its answer brief, the state explained that it accepted Petitioner’s

statement of the case and facts, subject to the following supplementation and

corrections:

A call between [Petitioner] and Lamar Battle reflects Battle

informing [Petitioner] that he had a six-hour drive ahead of him

and [Petitioner] said I know. Battle testified that he was referring

to the fact that he had to drive all the way to Jacksonville from

[Petitioner]’s residence when he made this statement. The

prosecutor asked Battle about a call where [Petitioner] referred to

[“]these guys.[”] The prosecutor asked Battle who [“]these guys[”]

were and Battle stated they were Gino Arthur and Leroy Lucas.

The prosecutor asked Battle if they were the two guys from

Jacksonville, Florida and Battle said yes.

The prosecutor asked Willie Davis what [Petitioner] meant,

during a call, when he said [“]how many jobs [d]o you think they

take[,”] and Davis indicated that “they” referred to Gino Arthur and

Leroy Lucas. A call between [Petitioner] and Davis reflects Davis

informing [Petitioner] that Battle had a seven-hour drive ahead of

him and [Petitioner] stating that he knows.

Resp. Ex. H at 4-5 (record citations omitted).

IV. The Amended Petition

A. Ground One

Petitioner alleges that his trial counsel was ineffective for failing to

submit to the trial court a written special jury instruction instructing the jury

that to find him guilty, it must find Petitioner conspired to bring drugs into

Florida. Doc. 3 at 6.

Petitioner raised this issue with the trial court in his Florida Rule of

Criminal Procedure 3.850 motion. Resp. Ex. Q at 4. The trial court summarily

denied the claim as follows:

In Ground One, Defendant argues that his trial counsel was

ineffective for failing to submit a written proposed special jury

instruction to the Court prior to the charge conference which,

according to Defendant, would have instructed the jury that it must

find that Defendant participated in a conspiracy that brought drugs

into the State of Florida. Defendant maintains that trial counsel’s

oral argument was correct but deficiency existed because counsel’s

failure to submit a written motion for a special jury instruction “led

to the trial court’s failure to recognize the deficiency in the standard

instruction.” Defendant posits alternatively that if the trial court

had received and rejected a written motion for a special jury

instruction, then the trial court’s error would have been properly

preserved for appeal. Due to the alleged deficiency, Defendant

argues he was prejudiced when the jury found him guilty based on

the standard jury instruction and when Defendant’s conviction was

affirmed on appeal.

The State, in its Response, argues that Defendant’s trial

counsel was not deficient and Defendant was not prejudiced, and

that the special jury instruction requested by Defendant’s counsel

would have been an incorrect statement of the law and misleading

to the jury. The Court agrees with the State and this Ground shall

be denied.

As an initial matter, “prejudice in counsel’s deficient

performance is assessed based on its effect on the result at trial, not

its effect on appeal.” Roderick v. State, 284 So. 3d 1152, 1154 (Fla.

1st DCA 2019) (citing Strobridge v. State, 1 So. 3d 1240, 1241 (Fla.

4th DCA 2009)). The focus of the Court should be on the proceeding

“‘whose result is being challenged.’” Strobridge, 1 So. 3d at 1242

(quoting Carratelli v. State, 961 So. 2d 312, 322 (Fla. 2007)). Thus,

the Court will not consider the last contention that Defendant was

prejudiced because his conviction was affirmed on appeal, but shall

focus solely on the trial itself and its result.

The Court finds trial counsel was not ineffective under this

ground. As stated in the instant Motion, trial counsel made an oral

motion to the Court during the charge conference attempting to

change the wording of the standard jury instruction. “The standard

jury instructions are presumed correct and preferred over special

instructions.” Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001).

The trial court considered both parties’ arguments and determined

that the standard instruction was sufficient. As the State argues in

its Response, such a change in the instruction may have only served

to confuse or mislead the jury when it retired for deliberations.

Critically, Defendant has not sufficiently demonstrated how the

failure to file a written motion, as compared to the oral motion

submitted and argued at the charge conference, constituted

deficient performance under the Strickland standard.

Assuming arguendo that trial counsel was deficient,

Defendant was not prejudiced. Again, Defendant admits his trial

counsel’s argument, delivered orally to the Court during the charge

conference, was correct. After the charge conference, the Court

instructed the jury as to the applicable law and the procedures for

its deliberation. Based on the testimony of the witnesses at trial, it

was not unreasonable for the jury to have concluded that Defendant

was involved in a conspiracy to traffic cocaine from Georgia to

Florida along with other co-defendants who were based both in

Georgia and in Jacksonville, Florida. Even if the special instruction

were granted as Defendant wished, the testimony at trial makes it

clear that a criminal conspiracy to traffic drugs existed and that

cocaine was actually brought into Jacksonville, Florida, from

Georgia, and money was then driven back from Jacksonville to

Georgia. Thus, the Court finds there is not a reasonable probability

that the outcome of Defendant’s trial would have been different had

Defendant’s trial counsel submitted a written motion for a special

jury instruction beyond the oral argument counsel delivered during

the charge conference.

Further, Defendant raised the issue of whether the trial court

erred in denying the oral motion for a special jury instruction on

direct appeal, which was considered by the First DCA; Defendant

raised it as the first issue in his Initial Brief. Claims that either

were or should have been raised on direct appeal are procedurally

barred from being brought for postconviction consideration. See

Byrd v. State, 597 So. 2d 252, 254 (Fla. 1992). In his Reply Brief

Defendant argued trial counsel properly preserved the special jury

instruction for appeal. However, in the instant Motion[,] Defendant

has taken the completely opposite position. The Court will not

contradict the First DCA’s Mandate, nor will it entertain

Defendant’s flip-flopping argument. Regardless, based on the above

reasoning the Court does not find trial counsel ineffective under

this ground. Because trial counsel was not deficient, Defendant was

not prejudiced, and the issue of the trial court’s decision to keep the

standard jury instruction and the question of proper preservation

of the alleged error was brought and resolved on direct appeal,

Defendant is not entitled to relief under this Ground.

Resp. Ex. S at 3-5 (record citations omitted). Petitioner appealed, and the First

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

Resp. Ex. W.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. First, this Court

must “defer to the state court’s findings regarding procedural” bar. Ferguson v.

Sec’y, Dep’t of Corr., 580 F.3d 1183, 1193 (11th Cir. 2009) (citing Zeigler v.

Crosby, 345 F.3d 1300, 1304 (11th Cir. 2003)). When “[t]he [state court] [has]

‘clearly and expressly’ stated that its judgment rested on a procedural bar, and

the bar provides an adequate and independent state ground for denying relief,”

federal habeas relief is precluded. Mills v. Singletary, 161 F.3d 1273, 1284 (11th

Cir. 1998). Here, the state court found, inter alia, that this claim was

procedurally barred on collateral review because the issue was already

considered and rejected on direct appeal. See Arbelaez v. State, 775 So. 2d 909,

919 (Fla. 2000) (holding claim raised and rejected on direct appeal was

procedurally barred on collateral review); Raulerson v. State, 420 So. 2d 567,

569 (Fla. 1982) (finding postconviction motion “cannot be used as a substitute

for an appeal, and where matters raised therein could have been or were raised

on direct appeal, denial of the motion is proper.”); see also Dennis v. State, 109

So. 3d 680, 692 (Fla. 2012) (holding that claim of ineffective assistance of

counsel for failing to object to testimony that improperly bolstered other

witnesses’ testimony was procedurally barred because it was raised on direct

appeal as a claim of fundamental error and rejected on the merits). Because the

state court found that Petitioner’s ineffective assistance claim was barred on an

adequate and independent state-law ground, this Ground is due to be denied as

procedurally barred.

In any event, even if Petitioner adequately presented this claim of

ineffective assistance of counsel to the state court, rejection of this Ground is

still appropriate because Petitioner shows neither deficient performance nor

prejudice. Petitioner must show that omission of this special instruction so

infected the entire trial that his resulting conviction for conspiracy to traffic in

controlled substances violated due process. Henderson v. Kibbe, 431 U.S. 145,

154 (1977) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The Court does

not judge the allegedly erroneous instruction “in artificial isolation,” but

considers the instruction in the context of the trial record and the jury

instructions as a whole. Id. at 152 n.10 (citing Boyd v. United States, 271 U.S.

104, 107 (1926)). Further, “[a]n omission, or an incomplete instruction, is less

likely to be prejudicial than a misstatement of the law.” Id. at 154. Thus, when,

as here, the alleged error is an omitted instruction, the burden on Petitioner is

“especially heavy.” Id.

During the charge conference, trial counsel verbally asked the trial court

to include a special instruction indicating Petitioner could only be found guilty

if the state proved he participated in a conspiracy to bring drugs into Florida.

Resp. Ex. F at 444-45. The trial court declined trial counsel’s request and

advised that it would follow the standard instruction. Id. at 445. Nevertheless,

the trial court recognized that Petitioner’s defense at trial was that he did not

participate in the conspiracy to traffic because he had no purpose to bring the

drugs to Florida, and it advised him that the standard instruction defining

“trafficking” specifically addressed Petitioner’s defense. Id. at 445; see also id.

at 103 (“Trafficking in Cocaine is defined as . . . [a] person knowingly possessed,

sold, purchased, manufactured, delivered, or brought into Florida a certain

substance.”). As the state court explained, considering the totality of the

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

to conclude that Petitioner participated in a conspiracy to traffic cocaine into

Florida. As such, Petitioner cannot show that but for trial counsel’s alleged

error, the outcome of his trial would have been different. Thus, upon review, the

state court’s adjudication of this claim was neither contrary to nor an

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

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

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

B. Ground Two

Petitioner argues that his trial counsel was ineffective for failing to file a

motion to dismiss the information for lack of jurisdiction. Doc. 3 at 8.

Petitioner raised this issue in his Rule 3.850 motion filed with the trial

court. Resp. Ex. Q at 10-14. The trial court summarily denied the claim, finding

as follows:

In Ground Two, Defendant claims his trial counsel was

ineffective when they failed to file a pretrial motion to dismiss the

amended information for lack of jurisdiction. Defendant contends

trial counsel was deficient for failing to file the motion to dismiss

and Defendant was prejudiced as the Court may have dismissed the

charges against him.

Section 910.005, Florida Statutes, reads in pertinent part:

(1) A person is subject to prosecution in this state for an

offense that she or he commits, while either within or

outside the state, by her or his conduct or that of

another for which the person is legally accountable, if:

(a) The offense is committed wholly or partly within the

state; . . . (c) The conduct outside the state constitutes

a conspiracy to commit an offense within the state, and

an act in furtherance of the conspiracy occurs in the

state.

§ 910.005(1)(c), Fla. Stat. (2015). The court in Black v. State, 819

So. 2d 208, 211 (Fla. 1st DCA 2002), held the trial court had

jurisdiction over that appellant, finding the information alleged

substantive offenses and a conspiracy that [] took place partly in

Florida. See also Domberg v. State, 518 So. 2d 1360, 1361 (Fla. 1st

DCA 1988) (Where that defendant was properly charged and

prosecuted in Florida for a “conspiracy which encompassed

repeated acts within the state” and that defendant’s participation

took place outside the State of Florida).

Defendant’s argument under this ground fails. Defendant

was charged with conspiracy to traffic cocaine into the State of

Florida. The law cited above grants criminal jurisdiction to the

Florida state courts over a person who is involved in a conspiracy

to commit a crime, either wholly or partly within the boundaries of

the State of Florida, regardless of the location of that person while

the crime is being committed. Here, the trial court had jurisdiction

over the co-conspirators, including Defendant, who had worked

together to traffic cocaine to Jacksonville, FL, from Georgia, as

established by the evidence and testimony presented at trial. The

State presented sufficient evidence and testimony to the jury which

established that a drug trafficking conspiracy, which involved

Defendant, brought cocaine into Jacksonville, Duval County,

Florida. Detective Medlin testified to the existence of a drug

trafficking ring which moved cocaine from Georgia to Florida and

consisted of: Defendant; Mr. Battle; Mr. Davis; Gary Alexander;

Gino Arthur[;] and Leroy Lucas. One of Defendant’s co-

conspirators, Lamar Battle, was arrested in Jacksonville, FL,

driving a vehicle containing hidden cocaine. Mr. Battle testified to

being involved in a group of people trafficking and dealing cocaine;

transporting cocaine down to Jacksonville from Georgia and

bringing money back up and delivering the cocaine, supplied by

Defendant, to Mr. Arthur and/or Mr. Lucas in Jacksonville. Another

co-conspirator, Willie Davis, corroborated Mr. Battle’s testimony

including Defendant’s involvement in the conspiracy and his role as

the cocaine supplier.

Based on the record and applicable law, the Court had

jurisdiction over Defendant and his co-conspirators. Because a

motion to dismiss the amended information for lack of jurisdiction

would have failed, trial counsel could not have been deficient for

failing to file such a motion and Defendant was not prejudiced by

trial counsel’s failure to file a meritless motion. Therefore,

Defendant is not entitled to relief under this Ground.

Resp. Ex. S at 5-7 (record citations omitted). Petitioner appealed, and the First

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

Resp. Ex. W.

The Court addresses this claim in accordance with the deferential

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

Court defers to the state court’s finding that the record and applicable law show

the state court had jurisdiction over Defendant and his co-conspirators. As such,

trial counsel did not act deficiently in failing to file a pretrial motion to dismiss

based on this argument. And upon thorough review of the record and the

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

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

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

given the evidence presented to the state court. Ground Two is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Amended Petition (Doc. 3) is DENIED, and this case is

DISMISSED WITH PREJUDICE.

2. The Clerk shall enter judgment dismissing this case with

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

3. If Petitioner appeals this denial, the Court denies a certificate of

appealability. Because this 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 18th day of

August, 2025.

Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

Jax-7

C: Michel Adib Abdallah, #J59361

Counsel of record

6 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.

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