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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANTHONY LAMAR SIMMONS,

Petitioner,

v. Case No. 3:22-cv-938-TJC-SJH

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this case

through counsel by filing a Petition for Writ of Habeas Corpus Under 28 U.S.C.

§ 2254 (Doc. 1). He is proceeding on an Amended Petition (Doc. 3), in which he

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

counts of attempted second degree murder and four counts of attempted robbery

with a deadly weapon. He is serving a forty-year prison sentence. Respondents

filed an Answer to Amended Petition (Doc. 6) with exhibits (Docs. 6-1 to 6-24).1

Petitioner filed a counseled Reply (Doc. 9). 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). “‘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

1 The Court cites to the document and page numbers as assigned by the Court’s

electronic case filing system.

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 not necessary. Turner v. Crosby, 339 F.3d 1247, 1275

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

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).

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 (1995) (per

curiam) (quoting Picard v. Connor, 404 U.S. 270, 275 (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, 513 U.S. at 365-66;

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

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

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, 501 U.S. at 747-48; 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, 131 S. Ct.

1120, 1127-28 (2011); Beard v. Kindler, 130 S. Ct. 612, 617-

18 (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). 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). 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

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 Murray v. Carrier, 477 U.S. 478,

488 (1986). 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).

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

modified).

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. “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 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 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).

III. Trial Proceedings

On direct appeal, Florida’s First District Court of Appeal summarized the

facts and trial proceedings as follows:

Six people went out to a restaurant to sing

karaoke and celebrate a birthday. After the restaurant

closed, they remained outside for an hour or longer,

talking and laughing about the weekend.

Appellant, identified in court by four witnesses,

approached the restaurant and checked the door to see

if the business was closed. Appellant then walked a

few feet toward the group, told them his car was out of

gas, and asked for money to help. One member of the

group immediately offered to take care of the car for

Appellant. Declining that assistance, Appellant

accepted $2.00 from another person and walked away

a few feet, but then turned to the group again, his hand

fumbling in his pocket, and irately asked why the

victims had given him so little money. Appellant

pulled out a handgun and told the group he would

shoot anyone who attempted to leave, and demanded

their wallets and money.

One member of the group stood up and stepped

toward Appellant, and Appellant immediately shot the

victim in the chest. The bullet entered the victim’s

lower torso, exited, and then entered the second

victim’s face. The first victim testified that he tried to

run after Appellant but found that he couldn’t breathe,

and looked at his chest to find a hole in his body. The

second victim testified that his face started shaking

and his body “slumped” to the left, and he could not

move. The bullet lodged permanently in that victim’s

neck.

Appellant’s girlfriend testified that Appellant,

whom she met on Facebook, was known as “Amp.”

When a local televised news report posted pictures of

the suspect from restaurant surveillance video,

Appellant admitted to her that the picture depicted

him.

The State introduced a photograph of Appellant

with a handgun, which was posted to Facebook near

the date of the crimes and matched the victims’

descriptions of the perpetrator. The State noted that

the gun in the photograph was consistent with the .40-

caliber Smith & Wesson semi-automatic pistol seized

from the apartment Appellant shared with his

girlfriend. The State presented evidence that

Appellant’s DNA was found on the magazine of that

firearm.

After law enforcement obtained sufficient

evidence to secure an arrest warrant, several officers

attempted to arrest Appellant as he arrived at his

girlfriend’s apartment. The officers used three cars to

attempt to block the egress route of the car in which

Appellant arrived. Appellant jumped into the driver’s

seat and drove into a parked car and then directly into

an officer’s car, and continued until he reached a dead

end. Appellant then drove into a dumpster, and one

officer rammed his car. Appellant leapt out of the car

and was hit by another vehicle, but quickly jumped up

and attempted to run away. Appellant was then

tackled by several officers and arrested.

The State presented the similar-fact testimony

of a witness who was robbed by Appellant two nights

earlier, at a restaurant less than a mile away from the

location of the charged crimes. The trial court

informed the jury of the limited purpose of the

evidence, noting that “the defendant cannot be

convicted for a crime, wrong or act that is not included

in the Information.”

The similar-fact witness testified that she and

friends arrived at the restaurant near 2:45 a.m. She

did not know Appellant, who was standing outside the

restaurant, but she asked him to use her phone to take

a picture of her and two friends. The witness and her

friends then went into the restaurant. When the

witness left the restaurant alone 15 minutes later,

Appellant approached her and asked for a cigarette

lighter. She went to her car and looked for a lighter,

then turned to tell Appellant she did not have one, and

saw that Appellant was pointing a handgun at her.

Appellant demanded her clothing, which contained

her wallet and cell phone, and then returned her

driver’s license after wiping it off with his shirt. The

witness testified that she drove home in her

undergarments. The witness further testified that

Appellant had on a white tank-top, which was a

similar shirt to the one described by the witnesses to

the charged crime. The witness also testified that

Appellant was in a car similar to the car shown in the

surveillance video on the televised news report.

Shortly after the robbery, the witness identified

Appellant from a photographic line-up, and she

positively identified him at trial.

Appellant testified in his own defense, stating

that on the night of the charged crimes he told the

victims he needed money for gas, and they gave him

money in exchange for marijuana. After noticing he

had been short-changed, he returned to them, when

the first shooting victim pulled a knife and threatened

Appellant, and then chased him. Appellant testified

that he fell and got back up, but his pants were baggy

and needed to be pulled up; while he was pulling up

his pants, his gun went off accidently. He further

testified that he fled the attempted arrest because he

thought he was being assaulted, as the officers were in

unmarked cars. Appellant denied any involvement in

the prior robbery.

After the defense rested, the State called the

victims of the charged case, who testified on rebuttal

that they never bought drugs from Appellant and no

one attacked Appellant with a knife. The State also

called the arresting officer, who testified that

Appellant, after being read his rights, told police he

did not own a gun and he was never at the restaurant

that night.

During closing argument, the State told the jury

that Appellant’s story about being attacked by the

victim was “made up – made up for the first time three

years and one month later.” Defense counsel objected,

which was overruled. The State made several similar

remarks attacking Appellant’s credibility and

veracity. Defense counsel did not object to these

statements. The State also argued that the discharge

of the firearm “doesn’t have to be accidental, it doesn’t

have to be intentional, it’s the fact that [Appellant]

was the person with the firearm, he is the one that

discharged it.”

Appellant was found guilty on all counts. At

sentencing, the victim who had been shot in the face

testified to the pain and suffering he continued to

endure, urging the court to sentence Appellant to life

imprisonment. Another victim testified to the extreme

mental anguish she experienced after the crime. The

court sentenced Appellant to forty years in prison on

one count of attempted second-degree murder and

twenty-five concurrent years in prison on all other

counts, based on a jury finding that Appellant

discharged a firearm during the offenses causing great

bodily harm.

Simmons v. State, 257 So. 3d 1121, 1125-26 (Fla. 1st DCA 2018).

IV. Analysis

A. Ground One

Petitioner argues that his trial counsel was ineffective when she failed to

file a pretrial motion seeking immunity under Florida’s stand your ground law.

See Doc. 3 at 18. He contends that one of the victims, Garry Lee, pulled out a

switchblade and “attacked” him, and “while trying to run away from Lee,

[Petitioner] fired back at Lee.” Id. He contends that his version of events is

supported by the pretrial deposition testimony of Michael Brown and Kimberly

Jordan. See id. at 18-19. Thus, according to Petitioner, his counsel was deficient

for failing to file a pretrial motion to dismiss, and he was prejudiced when he

was convicted at trial of two counts of attempted second degree murder. Id. at

19.

Petitioner raised this claim in his pro se postconviction motion filed

pursuant to Florida Rule of Criminal Procedure 3.850. The trial court3

summarily denied the claim:

In Ground Four, Defendant alleges counsel was

ineffective for failing to file a pretrial motion seeking

immunity pursuant to section 776.032(1), Florida Statutes.

After reviewing the record, this Court finds no reasonable

probability that the trial judge would have granted a motion

filed pursuant to section 776.012(1).[FN]

[FN]When the Defendant testifies at

trial, the Court can most certainly evaluate

the record to determine whether the

Defendant has demonstrated prejudice from

a failure to file a motion to dismiss on STYG

immunity. To the extent that the Third

District Court of Appeal, in Bradshaw v.

State, 2020 WL 912083 (Fla. 2020), has

suggested an evidentiary hearing is required,

this case is distinguishable because in

3 The judge who denied the Rule 3.850 motion was not the trial judge.

Bradshaw the Defendant did not testify even

though he asserted a claim of self-defense. In

this case, the Defendant did testify and as

such, this Court can examine the ROT to

determine whether there is a reasonable

probability, had counsel filed a motion to

dismiss under Florida’s STYG law, the trial

court would have granted the motion.

In reaching this conclusion, this Court finds analogous

cases in which counsel fails to timely file a motion for new

trial. For example, in Robinson v. State the trial court

granted an untimely motion for new trial, but the appellate

court reversed . . . for lack of jurisdiction. 462 So. 2d 471,

475-78 (Fla. 1st DCA 1984). The trial court then entered a

final judgment, and the defendant appealed. Id. On this

second appeal, the appellate court found that counsel’s

failure to timely file a motion for new trial deprived the

defendant “of all judicial review of evidentiary weight.” Id.

at 477. And, because the trial court had granted the

untimely motion, it was clear that a timely motion would

have been granted. Id. at 477-78. Relying upon Robinson,

subsequent appellate decisions have similarly held that a

defendant can demonstrate prejudice under Strickland by

pointing to evidence within the record that a motion for new

[trial] would have been granted had it been filed. E.g., Lamb

v. State, 124 So. 3d 953, 957 (Fla. 2d DCA 2013); State v.

Bodden, 756 So. 2d 1111, 1113 (Fla. 3d DCA 2000). However,

the First District Court of Appeal has made clear that

counsel’s failure to file a motion for new trial does not

constitute per se ineffective assistance of counsel. Williams

v. State, 553 So. 2d 309, 309 (Fla. 1st DCA 1989).

If counsel’s failure to seek judicial review of the

evidence post trial is not per se ineffective, then counsel’s

failure to do the same before trial cannot be per se

ineffective. Instead, a defendant must point to some record

evidence showing that the motion probably would have been

granted had it been filed. In Defendant’s case, this means he

must demonstrate a reasonable probability that the trial

judge would have found by a preponderance of the evidence

that he acted in self-defense when he shot the victims.[FN]

This Court’s finding is supported by the few appellate

decisions addressing counsel’s failure to file a pretrial

motion pursuant to section 776.012(1), wherein the courts

have held that such a claim may be summarily denied by the

attachment of portions of the record conclusively refuting

the claim. See Waters v. State, 267 So. 3d 538, 541 (Fla. 1st

DCA 2019); but see Bradshaw v. State, 45 Fla. L. Weekly

D439 (Fla. 3d DCA Feb[.] 26, 2020) (reversing and

remanding for an evidentiary hearing on defendant’s 3.850

motion without addressing the prejudice prong of

Strickland).

[FN] Defendant’s trial began on August

29, 2016. The jury rendered its verdict on

September 1, 2016. This Court sentenced

Defendant on October 19, 2016. He filed his

notice of appeal on November 15, 2016. Thus,

had counsel moved for a pretrial hearing,

Defendant would have had the burden of

establishing entitlement to immunity by a

preponderance of the evidence. See

Bretherick v. State, 170 So. 3d 766, 775 (Fla.

2015); see also Commander v. State, 246 So.

3d 1303, 1303-04 (Fla. 1st DCA 2018).

In addition to the eyewitness testimony given by the

victims, the State presented evidence that Defendant fled

when police first made contact with him. After officers

surrounded his vehicle, Defendant jumped into the driver’s

seat and drove away. He rammed his vehicle into a parked

car and a police truck, drove to a dead end, and tried to flee

on foot. The State also presented evidence that Defendant

had committed another robbery in a restaurant parking lot

days before the robbery in the instant case. Like the victims

in the instant case, Defendant approached the victim, asked

her for something, and then pulled out a gun when the victim

refused. The victim in that case recognized Defendant’s

vehicle from a news report about the instant case, and she

identified Defendant when shown a photographic lineup.

Defendant testified on his own behalf. By his version

of events, he was driving to see a friend when he ran out of

gas. He stayed with his vehicle for a while and asked if

anyone had money to help him out, but everyone declined.

Because he was on a busy street, he decided to start walking

and see if he could find anyone who would help him. He saw

a group of people outside of a restaurant and asked them for

money. They were noncommittal/nonchalant in their

responses, but they seemed like nice people, so he tried to

start a conversation with them. One of the women told him

that she was waiting on someone to bring her marijuana.

This was fortuitous, because Defendant had his personal

stash with him. He agreed to sell her some for ten dollars,

but she only gave him seven. When he realized the mistake,

he returned to the group, but the woman was gone. He talked

with two men who were sitting down, and asked them to get

her to come back because she owed him three dollars. The

conversation became confrontational, and one of the men

pulled out a pocketknife. The man was much larger than

Defendant, and he attacked Defendant with the knife.

Defendant fell to the ground, and the man continued to poke

him with the knife. Defendant started to run, the man

chased him, and Defendant shot him. When interviewed by

detectives, Defendant denied any involvement in the robbery

and did not mention the attack.

On rebuttal, the victims categorially denied

Defendant’s version of events. The detective who

interviewed Defendant reiterated that Defendant had never

discussed the stabbing and/or drug deal with him.

Defendant’s version of events was also inconsistent with the

testimony of an eyewitness who observed the shooting from

a distance.

The State[] presented a compelling case against

Defendant, but—with the exception of his own self-serving

testimony at trial—no evidence supported Defendant’s claim

of self-defense. Certainly, the jury rejected it. Accordingly,

this Court finds no reasonable probability that a pretrial

motion for immunity filed pursuant to section 776.012(1)

would have been granted. As such, counsel is not ineffective

for failing to file a meritless motion. The Defendant is not

entitled to relief on Ground Four.

Doc. 6-12 at 117-20 (internal record citations omitted).

Petitioner, through counsel, appealed the trial court’s denial of this claim.

In his initial brief on appeal, he raised one argument: “A successor judge who

did not preside over the trial of a criminal case cannot deny a 3.850 claim of

ineffective assistance of counsel for failing to file a pretrial stand your ground

motion by weighing the evidence from a cold record when the issue comes down

to the credibility of the defendant’s testimony at trial; the trial court erred

therefore in summarily denying the claim without an evidentiary hearing.” Doc.

6-14 at 11 (capitalization and emphasis omitted). The First DCA affirmed the

trial court’s decision and issued a written opinion:

Anthony Lamar Simmons appeals a trial court

order denying his motion for postconviction relief.

Simmons argued below and now on appeal that his

trial counsel was ineffective for failing to file a pretrial

motion seeking immunity under Florida’s Stand-Your-

Ground law, codified at section 776.032, Florida

Statutes. Simmons claims that had this pretrial

motion been filed, there is a reasonable probability

that it would have been granted and he would have

been immune from prosecution. We disagree.

Simmons was convicted by a jury of two counts

of attempted second-degree murder and four counts of

attempted armed robbery. Simmons v. State, 257 So.

3d 1121, 1125 (Fla. 1st DCA 2018). The jury in his case

was instructed on the defense of justifiable use of

deadly force on the two attempted second-degree

murder charges. Specifically, the jury instructions

stated in relevant part

If in your consideration of the issue

of self-defense you have a reasonable

doubt on the question of whether the

defendant was justified in the use of

deadly force, you should find the

defendant not guilty.

However, if from the evidence you

are convinced beyond a reasonable doubt

that the defendant was not justified in the

use of deadly force, you should find him

guilty if all the elements of the charge

have been proved.

This instruction is the standard jury instruction. Fla.

Std. Jury Instr. (Crim.) 3.6(f). The jury at Simmons’

trial rejected this defense and found him guilty.

In Boston v. State, 296 So. 3d 580 (Fla. 1st DCA

2020), the trial court applied the wrong burden at

Boston’s Stand-Your-Ground hearing but a jury later

rejected his claim of self-defense and found him guilty

beyond a reasonable doubt. We held that “a trial

court’s error in applying the correct burden at the

immunity hearing can be cured if the State establishes

the defendant’s guilt at trial by proof beyond a

reasonable doubt.” Id. at 583. The Florida Supreme

Court reviewed Boston v. State and approved our

holding. 326 So. 3d 673 (Fla. 2021). To hold otherwise

“would violate the statutory prohibition on reversing a

judgment in the absence of error ‘that injuriously

affected the substantial rights of the appellant.’” Id. at

678 (quoting § 924.33, Fla. Stat. (2021)).

In postconviction claims of ineffective assistance

of trial counsel, Strickland v. Washington supplies a

different but similar prejudice standard. “The

defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” 466 U.S. 668, 694, 104 S. Ct. 2052, 80

L.Ed.2d 674 (1984). When a jury rejects a claim of self-

defense at trial beyond a reasonable doubt, there is no

reasonable probability that a trial judge would have

rendered a different judgment at a Stand-Your-

Ground hearing with a lower standard of proof. The

conviction beyond a reasonable doubt precludes a

finding of prejudice under Strickland. Because

Simmons was convicted at trial, his claim fails as a

matter of law.

Doc. 6-17; Simmons v. State, 337 So. 3d 470, 470-71 (Fla. 1st DCA 2022).

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications.4 Although

Ground One presents an ineffective assistance of trial counsel claim, the

underlying question is whether the trial court would have granted a pretrial

motion to dismiss had trial counsel filed one. This question is a matter of state

law, which was decided by the First DCA. The First DCA’s decision is supported

by the record, and this Court must defer to the state court’s determination on

this state law issue. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (recognizing

that the United States Supreme Court has “repeatedly held that a state court’s

interpretation of state law, including one announced on direct appeal of the

challenged conviction, binds a federal court sitting in habeas corpus”); Pinkney

4 Respondents argue this claim is unexhausted but the Court disagrees. The First

DCA’s opinion clearly reflects that it considered the claim as an ineffective assistance

of counsel claim.

v. Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017) (“[A]lthough the issue of

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

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

construction of its own law when the validity of the claim that appellate counsel

failed to raise turns on state law.” (internal quotation marks and citation

omitted)). As the state court noted, the jury found Petitioner guilty under the

higher beyond a reasonable doubt standard. Thus, it is unlikely that the state

court would have granted a pretrial motion to dismiss under the lower

preponderance of the evidence standard. As such, Petitioner fails to show

prejudice.

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. Petitioner is not

entitled to federal habeas relief on Ground One.

B. Ground Two

Petitioner argues that his trial counsel was ineffective for failing to

impeach Garry Lee, one of the victims, “with a printout of his Facebook page

which directly contradicted his trial testimony that he had not shared a picture

of [Petitioner].” Doc. 3 at 20 (emphasis omitted). He argues that had counsel

impeached Lee as he suggests, “there is a reasonable probability that the jury

would have questioned Lee’s version of events since he was willing to lie about

something so trivial, and found [Petitioner] not guilty.” Id.

Petitioner acknowledges that he did not exhaust this claim, but he argues

that the exception outlined in Martinez excuses his procedural default. In

Martinez, the Supreme Court recognized a narrow exception to the rule that an

attorney’s error, or lack of an attorney, in a postconviction proceeding does not

constitute cause for a procedural default:

Where, under state law, claims of ineffective

assistance of trial counsel must be raised in an initial-

review collateral proceeding, a procedural default will

not bar a federal habeas court from hearing a

substantial claim of ineffective assistance at trial if, in

the initial-review collateral proceeding, there was no

counsel or counsel in that proceeding was ineffective.

Id. at 17. To establish cause under Martinez, Petitioner must demonstrate that

the defaulted ineffective assistance of trial counsel claim “is a substantial one,

which is to say that [he] must demonstrate that the claim has some merit.” Id.

at 14; see also Lambrix v. Sec’y Fla. Dep’t of Corr., 851 F.3d 1158, 1164 (11th

Cir. 2017). A claim is not substantial if it lacks merit or is wholly without factual

support. See Martinez, 566 U.S. at 15-16.

At trial, Lee testified that on August 8, 2013, four days after the incident,

he identified Petitioner in a photo line-up. Doc. 6-4 at 488-90. On cross-

examination, Petitioner’s counsel asked Lee whether he had shared a

photograph of Petitioner on Facebook. Id. at 519. Lee responded, “No, I did not.”

Id. Counsel then asked, “So on August 14th, you didn’t share a photograph of .

. . [Petitioner] being arrested - - or I guess a record of [Petitioner] being arrested

for this offense?” Id. Lee responded, “No, I don’t recall that, no.” Id. at 520. At

that time, the state objected and asked for a sidebar. Id. During the sidebar

conversation, the state advised that it had not been provided with any Facebook

printouts although it observed some in defense counsel’s possession during

cross-examination. Id. The state requested a Richardson5 hearing if defense

counsel was going to ask anything further of Lee regarding his Facebook posts.

Id. Defense counsel advised that she “discovered it last night, but [she was] not

going to ask him any further questions about it.” Id.

Petitioner also testified at trial. He acknowledged during his trial

testimony that he was the individual who shot the victims, but he claimed—for

the first time—to have done so in self-defense. So, the issue of Petitioner’s

identity was not contested at trial. Even if counsel had impeached Lee in the

manner Petitioner suggests, he fails to show a reasonable probability that the

outcome of the trial would have been different. Petitioner’s argument to the

contrary is entirely speculative6 and ignores the remainder of the state’s

5 Richardson v. State, 246 So. 2d 771 (Fla. 1971).

6 Petitioner argues that “Lee’s willingness to lie about something as trivial as posting

on Facebook, could well have been the deciding factor for the jury in determining

credibility.” Doc. 9 at 7.

evidence against him. At trial, Detective Bear testified that he interviewed

Petitioner after the incident. Doc. 6-4 at 1238-39. Detective Bear explained that

Petitioner denied being at Applebee’s, denied owning or possessing a firearm,

and did not say that he had been stabbed by Lee. Id. at 1241, 1246, 1250.

Kimberly Jordan, one of the eyewitnesses who was in Lee’s group of friends,

testified that no one in their group had any type of weapon, and she did not see

Lee with a pocketknife or observe Lee “charge after [Petitioner] with a

pocketknife.” Doc. 6-4 at 1235-36. Jared Jordan, an eyewitness who was not

part of Lee’s group of friends, testified that he was also at Applebee’s that

evening, and he witnessed the shooting. See id. at 724-54. He heard Petitioner

ask Lee’s group of friends whether Applebee’s was closed and if they had any

change. Id. at 729, 749. He testified that Petitioner was “directly in front of”

Lee’s group of friends, facing them with his arm extended towards them when

Jordan heard gunshots. Id. at 733-35. Further, contrary to Petitioner’s

testimony that he was shorted on a drug deal, Charaine Robinson testified that

she does not use drugs, and she never had a conversation about drugs with

Petitioner. Id. at 1230-32. Johnson also testified that no one in their group

discussed drugs with Petitioner. Id. at 1234-35.

Considering the evidence presented, there is no reasonable probability of

a different outcome had counsel impeached Lee with his Facebook post. Because

this claim is not substantial, Martinez does not apply to excuse Petitioner’s

procedural default. Petitioner has not otherwise shown cause for and prejudice

from his procedural default or demonstrated that a fundamental miscarriage of

justice will result if the Court does not consider this claim on the merits. As

such, Ground Two is due to be denied.

C. Ground Three

Petitioner claims that his trial counsel was ineffective by failing “to object

to the prosecutor’s misstatement of the law when she incorrectly advised the

jury that [Petitioner] should be convicted even if they believed that the

discharge of the firearm was an accident.” Doc. 3 at 21 (emphasis omitted).

According to Petitioner, “had [his] counsel objected and the trial court clarified

the applicable law, there is a reasonable probability that [Petitioner] would not

have been found guilty of attempted second degree murder.” Id.

Petitioner raised this claim as ground six in his Rule 3.850 motion. The

trial court summarily denied the claim, explaining that “[a]fter reviewing the

State’s arguments, this Court finds that they were a fair comment on the

evidence. Accordingly, Defendant is not entitled to relief on Ground[] . . . Six.”

Doc. 6-12 at 121.

Petitioner appealed. Because the trial court did not hold an evidentiary

hearing, Petitioner was not required to file an initial brief. See Fla. R. App. P.

9.141(b)(2)(C)(i) (following a summary grant or denial of all claims raised in a

motion without an evidentiary hearing, an appellant is not required to file an

initial brief). Nevertheless, Petitioner, through counsel, filed an initial brief but

failed to address this claim. Because this claim was not included in the initial

brief, Petitioner acknowledges that this claim is not exhausted and procedurally

barred. See Doc. 3 at 22.7 But he asks this Court to apply the Martinez exception

to excuse his procedural default. Id.

The limited exception in Martinez applies only “where (1) a state requires

a prisoner to raise ineffective-trial-counsel claims at an initial-review collateral

proceeding; (2) the prisoner failed properly to raise ineffective-trial-counsel

claims in his state initial-review collateral proceeding; (3) the prisoner did not

have collateral counsel or his counsel was ineffective; and (4) failing to excuse

the prisoner’s procedural default would cause the prisoner to lose a ‘substantial’

ineffective-trial-counsel claim.” Lambrix v. Sec’y, Fla. Dep’t of Corr., 756 F.3d

1246, 1260 (11th Cir. 2014) (emphasis added). Importantly, Martinez “does not

concern attorney errors in other kinds of proceedings, including appeals from

7 There are two unpublished Eleventh Circuit cases finding that a petitioner

who chooses to file a brief in an appeal of the summary denial of a Rule 3.850 motion

does not waive any issues not addressed in the brief. See Cortes v. Gladish, 216 F.

App’x 897 (11th Cir. 2007); Darity v. Sec’y, Dep’t of Corr., 244 F. App’x 982, 984 (11th

Cir. 2007). But both of those cases rely on Webb v. State, 757 So. 2d 608 (Fla. 5th DCA

2000), from which the Fifth DCA has since receded. See Ward v. State, 19 So. 3d 1060,

1061 (Fla. 5th DCA 2009) (explicitly receding from Webb and finding issues not raised

in an appellant’s brief following a summary denial of a postconviction motion were

abandoned); see also Hastings v. State, 388 So. 3d 1145, 1147 (Fla. 5th DCA 2024)

(affirming summary denial of a ground because the appellant “did not address it at all

in her brief”). Thus, the Court does not find the Eleventh Circuit’s unpublished cases

to be persuasive and agrees with the parties that this claim is unexhausted.

initial-review collateral proceedings, second or successive collateral

proceedings, and petitions for discretionary review in a State’s appellate

courts.” Id. (emphasis added; internal quotations and citation omitted). Here,

Petitioner’s claim is defaulted because although he raised the claim in his pro

se Rule 3.850 motion, his counsel did not raise the claim in his 3.850 appeal.

And “the Supreme Court has explicitly held that attorney errors made in

appeals from initial-review collateral proceedings do not constitute cause

excusing a procedural default.” Baker v. Dep’t of Corr., Sec’y, 634 F. App’x 689,

694 (11th Cir. 2015). Thus, Martinez does not apply.

Regardless, even if Martinez did apply, the underlying ineffective

assistance of counsel claim is not substantial. “The statements of a prosecutor

will justify reversal of a conviction if they undermined the fairness of the trial

and contributed to a miscarriage of justice. Furthermore, a prosecutor’s

statements during closing argument require reversal only if the comments are

both improper and prejudicial to a substantial right of the defendant.” United

States v. Jacoby, 955 F.2d 1527, 1541 (11th Cir. 1992) (internal quotations and

citations omitted). Notably, on direct appeal, Petitioner argued that it was

legally inaccurate for the prosecutor to tell “the jury that even if the jury found

that [Petitioner’s] discharge of the gun was not intentional, they should find

that [Petitioner] discharged a firearm causing great bodily harm.” Doc. 6-5 at

50. The First DCA found as follows:

[Petitioner] also argues that, during closing

argument, the State misstated the law by incorrectly

informing the jury that [Petitioner] could be convicted

even if the jury believed the discharge of the firearm

was an accident. Where a prosecutor misstates the law

during closing argument, and the defendant does not

object or move for mistrial, the issue is not preserved

for appellate review unless the comment rises to

fundamental error, such that a conviction could not

have been obtained without the error. See, e.g., Evans

v. State, 177 So. 3d 1219, 1234 (Fla. 2015); State v.

Fountain, 930 So. 2d 865, 866 (Fla. 2d DCA 2006).

During closing arguments, the State told the

jury that the discharge of the firearm “doesn’t have to

be intentional, it’s the fact that [Petitioner] was the

person with the firearm, he is the one that discharged

it.” [Petitioner] neither objected nor moved for

mistrial; thus, absent fundamental error, the issue is

waived. Evans, 177 So. 3d at 1234. Regardless, we do

not view the State’s comment as a misstatement of

law, let alone fundamental error. The State argued

that intent was not required for the aggravating factor

of discharging a firearm. The State had already

explained how to find second-degree murder, and

prefaced the challenged comment with “So, if you find

[Petitioner attempted to] commit[ ] murder in the

second degree . . . .” (Emphasis added.) Thus, no

fundamental error occurred.

Simmons, 257 So. 3d at 1129-30; see Doc. 6-8 at 10.

Thus, the First DCA ruled on the underlying issue—whether the

prosecutor’s comment was improper—finding that the comment was not “a

misstatement of law.” Regardless, the jury was repeatedly instructed that what

the lawyers say is not evidence, the judge would instruct it on the law, and it

was required to base its verdicts solely on the evidence presented during the

trial. See Doc. 6-4 at 264-65, 1300, 1405, 1406-07. Notably, jurors are presumed

to follow a court’s instructions on the law. See Brown v. Jones, 255 F.3d 1273,

1280 (11th Cir. 2001); see also United States v. Almanzar, 634 F.3d 1214, 1222

(11th Cir. 2011).

Considering the record, the Court finds that the state’s comment during

closing argument did not render Petitioner’s trial fundamentally unfair, or “so

infect[] the trial with unfairness as to make the resulting conviction a denial of

due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Thus, Petitioner

fails to show either deficient performance or resulting prejudice, which means

his instant ineffective assistance of counsel claim is insubstantial. Because this

claim is not substantial, Martinez, assuming it applies in this situation, does

not excuse Petitioner’s procedural default. Petitioner has not otherwise shown

cause for and prejudice from his procedural default or demonstrated that a

fundamental miscarriage of justice will result if the Court does not consider this

claim on the merits. As such, Ground Three is due to be denied.

D. Ground Four

Petitioner claims that his trial counsel was ineffective by failing “to object

to the prosecutor’s misstatement of the burden of proof attached to a finding

that [Petitioner] acted in self-defense.” Doc. 3 at 22 (emphasis omitted).

Petitioner specifically takes issue with the following statement made by the

prosecutor during closing argument: “So, obviously, in order to find a justifiable

attempted homicide, you all would have to believe unanimously that the

defendant was the one being attacked by Garry Lee with that pocketknife in

order to find that the defendant’s actions, the firing of the gun, was justifiable.”

Id.

Petitioner raised this claim as ground seven in his Rule 3.850 motion. The

trial court summarily denied the claim, explaining that “[a]fter reviewing the

State’s arguments, this Court finds that they were a fair comment on the

evidence. Accordingly, Defendant is not entitled to relief on Ground[] . . . Seven.”

Doc. 6-12 at 121.

Petitioner appealed, but as with Ground Three above, he failed to address

this claim in his initial brief. Petitioner acknowledges that this claim is not

exhausted and procedurally barred. See Doc. 3 at 23. But he asks this Court to

apply the Martinez exception to excuse his procedural default. Id.

For the same reasons as stated in Ground Three above, Martinez does not

apply in this situation. Nevertheless, assuming it does, the Court finds the

underlying ineffective assistance of counsel claim is not substantial.

On direct appeal, Petitioner argued the prosecutor’s statements were a

misstatement of the burden of proof. See Doc. 6-5 at 52. The First DCA found

as follows:

Next, [Petitioner] claims that the State

improperly shifted the burden of proof on his self-

defense claim. When a defendant raises a self-defense

claim, he must produce enough evidence to establish a

prima facie case of justifiable use of force. Fields v.

State, 988 So. 2d 1185, 1188 (Fla. 5th DCA 2008). Once

a defendant makes this showing, the State has the

burden to prove beyond a reasonable doubt that the

defendant did not act in self-defense. Id. Where a

defendant does not object to a comment that shifts the

burden of proof, the claim is waived on appeal.

Morrison v. State, 818 So. 2d 432, 445 (Fla. 2002).

Here, the State told the jury that “in order to

find a justifiable attempted homicide, you all would

have to believe unanimously that [Petitioner] was the

one being attacked by [the victim] with that

pocketknife in order to find that [Petitioner’s] actions,

the firing of the gun, was justifiable.” As [Petitioner]

did not object or move for mistrial, this claim is not

preserved for appeal. See id. Moreover, this comment

did not shift the burden of proof. See Fields, 988 So. 2d

at 1188. Shortly after making the comment, the State

told the jury that if, “in your consideration of the issue

of self-defense, you have reasonable doubt on the

question of whether [Petitioner] was justified in the

use of deadly force, you should find [Petitioner] not

guilty.” (Emphasis added.) Thus, [Petitioner] fails to

show any fundamental error.

Simmons, 257 So. 3d at 1130; see Doc. 6-8 at 10-11.

The First DCA explicitly found that the prosecutor’s “comment did not

shift the burden of proof.” Again, the jury was repeatedly instructed that what

the lawyers say is not evidence, the judge would instruct it on the law, and it

was required to base its verdicts solely on the evidence presented during the

trial. See Doc. 6-4 at 264-65, 1300, 1405, 1406-07. Further, the trial court

instructed the jury on the burden of proof, specifically advising the jury that

Petitioner did not have to “prove anything.” Id. at 1404. Jurors are presumed to

follow a court’s instructions on the law. See Brown, 255 F.3d at 1280; see also

Almanzar, 634 F.3d at 1222.

Considering the record, the Court finds that the state’s comment during

closing argument did not render Petitioner’s trial fundamentally unfair, or “so

infect[] the trial with unfairness as to make the resulting conviction a denial of

due process.” Darden, 477 U.S. at 181. Thus, Petitioner fails to show deficient

performance or resulting prejudice, which renders this claim insubstantial.

Because this claim is not substantial, Martinez, assuming it applies, does not

excuse Petitioner’s procedural default. Petitioner has not otherwise shown

cause for and prejudice from his procedural default or demonstrated that a

fundamental miscarriage of justice will result if the Court does not consider this

claim on the merits. As such, Ground Four is due to be denied.

Accordingly, it is

ORDERED:

1. The Amended Petition (Doc. 3) 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 15 day of

September, 2025.

& Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

JAX-3 9/2

C:

Counsel of Record

Lamar Anthony Simmons, #J58086

8 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.

30