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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CHARLES R. SOUTHERN,

Petitioner,

v. Case No. 3:22-cv-808-TJC-SJH

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, is proceeding pro se on

a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 1). Petitioner

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

second-degree murder for which he is serving a life sentence with judicial

review after twenty-five years. Respondents filed a Response (Doc. 6) with

exhibits (Docs. 6-1 to 6-21; Exs. A to U).1 Petitioner filed a Reply (Doc. 7). This

case is ripe for review.2

1 The Court will cite exhibits by document and page number as assigned by the Court’s

electronic case management 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

II. Governing Legal Principles

A. Standard Under § 2254

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

governs a state prisoner’s federal habeas corpus petition. Ledford v. Warden,

Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016)

(explaining AEDPA deference), abrogation in part on other grounds recognized

by Smith v. Comm’r, Ala. Dep’t of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023).

“The purpose of AEDPA is to ensure that federal habeas relief functions as a

guard against extreme malfunctions in the state criminal justice systems, and

not as a means of error correction.” Id. (quoting Greene v. Fisher, 565 U.S. 34,

38 (2011)).

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. 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. Harrington v. Richter, 562 U.S. 86,

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.

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, 584 U.S. 122, 125-26 (2018).

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

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

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

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

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

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

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

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

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

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

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

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as 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. (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) (parallel

citations omitted).

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. 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) (parallel citations omitted).

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) (parallel citations omitted). 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) (parallel citation omitted).

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 (parallel citation omitted). “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 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); 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.

The two-part Strickland test applies to challenges to the validity of guilty

pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,

58 (1985). The petitioner must still show that counsel’s performance was

deficient. See id. at 56-59; Lynch v. Sec’y Fla. Dept. of Corr., 776 F.3d 1209,

1218 (11th Cir. 2015). To establish prejudice, however, the petitioner “must

show that there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Hill,

474 U.S. at 59 (footnote omitted); Lynch, 776 F.3d at 1218.

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) (internal 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).

III. Procedural History & Factual Background

On February 16, 2010, when he was seventeen years old, Petitioner was

arrested and charged by Information with second-degree murder with a firearm

for the death of a classmate. Ex. A at 2, 7. A grand jury later returned an

Indictment for first-degree murder with a firearm. Ex. B at 2-4. With the

assistance of retained counsel, Rhonda Peoples-Waters, Petitioner entered a

written plea of guilty and negotiated sentence to second-degree murder in Duval

County case number 2010-CF-1745. Ex. C at 2-4. On October 1, 2010, the trial

court sentenced Petitioner to a term of life, the minimum mandatory sentence

under Florida Statutes section 775.087 (commonly referred to as the “10-20-Life

statute”) for the use of a firearm during the commission of a felony. Ex. D at 2,

5-6.

After the Supreme Court’s 2012 decision in Miller,3 and the consequent

3 Miller v. Alabama, 567 U.S. 460, 479 (2012) (holding “the Eighth Amendment forbids

a sentencing scheme that mandates life in prison without possibility of parole for

juvenile offenders”).

changes in Florida’s juvenile sentencing legislation, Petitioner sought

postconviction relief under Rule 3.850 of the Florida Rules of Criminal

Procedure, arguing his sentence was unconstitutional. See State v. Southern,

No. 2010-CF-1745 (Fla. 4th Cir. Ct., Mar. 12, 2013).4 The trial court denied his

motion, concluding that Florida’s First District Court of Appeal held Miller

should not apply retroactively. Id. (Aug. 2, 2013). The First DCA affirmed the

trial court’s order. Id. (Jan. 7, 2014). The Florida Supreme Court granted

review, and in light of its decision in Falcon,5 quashed the First DCA’s opinion,

and instructed the First DCA to remand the case to the trial court for

resentencing in accordance with Florida’s newly enacted juvenile sentencing

laws as codified in Florida Statutes sections 775.082, 921.1401, and 921.1402.

Ex. E at 4-5.6

4 The Court takes judicial notice of Petitioner’s state court docket. See Fed. R. Evid.

201(b)(2) (allowing a court to “judicially notice a fact that is not subject to reasonable

dispute because it . . . can be accurately and readily determined from sources whose

accuracy cannot be reasonably questioned”); Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d

649 (11th Cir. 2020) (“State court records of an inmate’s postconviction proceedings

generally satisfy [the] standard [for judicial notice under Rule 201(b)(2)].”).

5 Falcon v. State, 162 So. 3d 954, 956 (Fla. 2015) (holding Miller applies retroactively).

6 “[T]he Florida Legislature unanimously enacted legislation in 2014 designed to bring

Florida’s juvenile sentencing statutes into compliance with the United States Supreme

Court’s . . . Eighth Amendment juvenile sentencing jurisprudence.” Horsley v. State,

160 So. 3d 393, 394, 401 (Fla. 2015).

On December 13, 2017, the trial court entered a consent order for

resentencing, which Petitioner and his appointed attorney, Michael Bossen,

signed. Ex. I at 24-26. The consent order provided in relevant part:

The State and the [Petitioner] have agree[d] that

[Petitioner] would be re-sentenced . . . to a term of life

(non-mandatory) in prison for the offense of second

degree murder, without a mandatory life sentence, but

with a 25 year minimum mandatory for the use of a

firearm during a homicide, [and Petitioner] stipulates

to a finding pursuant to Section 775.082(3)(a)(5)(a)

Florida Statutes, that he killed, intended to kill, or

attempted to kill the victim in this case, thereby

entitling him to a review within 25 years of the date of

his initial incarceration . . . .

Id. at 25. Petitioner waived his statutory right to present evidence at a

resentencing hearing. Id.

The day the consent order was entered, the trial court held a hearing at

which it vacated Petitioner’s original sentence and imposed a new sentence in

accordance with the parties’ negotiated disposition and the consent order. Id. at

28-30. Petitioner stated under oath that he agreed to be resentenced “to life in

prison with a 25 year minimum mandatory, and . . . a 25 year review pursuant

to the statute . . . .” Id. at 32-33. Before the trial court imposed his new sentence,

Petitioner orally waived the right to present additional evidence. Id. at 32-33,

35.

The trial court advised Petitioner that, by waiving his right to present

evidence, it would be resentencing him in accordance with “the testimony and

evidence that was put on” at his 2010 sentencing hearing and in consideration

of the relevant statutory criteria. Id. at 35. Petitioner said he understood and

had no questions about that process. Id. He also acknowledged that he and his

attorney had conversations about the resentencing, including a discussion

regarding the new juvenile sentencing laws, and he advised the trial court that

his attorney had “answered all of [his] questions,” and he was satisfied with his

attorney’s services. Id. at 34-36. Based upon Petitioner’s oral representations

made under oath and the signed consent order, the trial court found Petitioner’s

“waiver . . . and his agreement to be resentenced to life with the 25 year

minimum mandatory and the 25 year review . . . [was] . . . voluntary . . . [and

he had] a full understanding of the consequences.” Id. at 36. The trial court

resentenced Petitioner in accordance with the parties’ agreement. Id. A new

judgment was entered on December 13, 2017. Ex. G at 2.

The following day, the trial court issued a written order, summarizing

relevant evidence presented at Petitioner’s “lengthy [2010] sentencing hearing,”

which the court “vividly remember[ed].” Ex. H at 2-5, 16. The evidence

presented at Petitioner’s sentencing hearing showed that he and his co-

defendant, a fellow classmate, wanted to start committing robberies together,

so they planned to murder someone “to know what it felt like” should the need

to kill someone arise during a robbery. Id. at 4-5. Not only did Petitioner admit

to firing the first shot (of two that “render[ed the victim] nearly unidentifiable”),

but physical evidence connected him to the crime, including blood on his shoes,

surveillance footage, and the firearm he used, which he threw in a marsh after

the murder. Id. at 5, 8-9.

In its order, the trial court made individualized findings on the juvenile

sentencing factors, including that the murder was “calculated and ruthless” and

devasted the victim’s family and community. Id. at 8-9. The trial court “fully

and thoughtfully considered the science on adolescent brain development”—

that a 17-year-old’s frontal lobe is not fully developed—along with Petitioner’s

intellectual ability and childhood trauma, as testified to by a licensed

psychologist, but found Petitioner’s actions went “well beyond the immaturity

and impetuosity expected of a juvenile brain.” Id. at 10-12. The trial court

explained:

On the day of the murder, [Petitioner] told another

student that he and his co-defendant planned to

murder [the victim] that evening. [Petitioner] fired the

first shot and left his close friend lying dead on the

ground, her face blown open and shattered from the

bullet wounds. After[ward,] . . . [Petitioner] attempted

to cover-up his involvement by cleaning his vehicle,

disposing of [the victim’s] jacket, and lying to police

about his involvement. No evidence presented at the

original sentencing hearing supports a conclusion that

[Petitioner] was caught up in the moment, or that he

did not have time to thoroughly think about the

consequences of his actions. Further, while adolescents

are more likely to be emotional than their adult

counterparts, [Petitioner] lacked an emotional

response to the crime he committed and [the victim’s]

ultimate death.

….

This Court finds the premeditated, calculated, and

heinous way in which [Petitioner] committed the

offense does not reflect the immaturity and impulsivity

associated with youth. Premeditation and calculation

are not inherent components of murder and [Petitioner]

made conscious decisions to incorporate these concepts

into the offense.

Id. at 12-13, 14.

The court further noted the psychologist testified that Petitioner had a

“nonchalant attitude about life,” and the video surveillance showed “[Petitioner]

and the co-defendant returning to the school after the murder, walking side-by-

side and laughing.” Id. at 10, 14. Based on the evidence and in consideration of

the relevant statutory criteria, the trial court found “the life sentence agreed

upon by the parties . . . [was] proper.” Id. at 16. Accordingly, the trial court

sentenced Petitioner “to a term of life imprisonment with a twenty-five-year

minimum mandatory . . . . [with] a twenty-five-year review of th[e] sentence.”

Id.

On May 21, 2018, Petitioner filed a pro se motion for postconviction relief

under Florida Rule of Criminal Procedure 3.850 (“2018 Rule 3.850 Motion”). Ex.

I at 5. The trial court held an evidentiary hearing on the motion on September

17, 2018, at which Petitioner’s appointed resentencing counsel (Bossen)

testified. Id. at 113-15. Following the evidentiary hearing, the trial court denied

Petitioner’s 2018 Rule 3.850 Motion on the merits. Id. at 53-58. Proceeding pro

se, Petitioner appealed. Ex. J at 2. The First DCA per curiam affirmed the trial

court’s order without a written opinion and issued its mandate. Ex. M.

On September 20, 2019, Petitioner filed a successive Rule 3.850 motion

in the trial court, seeking to withdraw his guilty plea (“2019 Rule 3.850

Motion”). Ex. N at 5, 8-9. He argued his retained trial counsel (Peoples-Waters)

was ineffective for failing to properly advise him “that his plea would

automatically result in a minimum mandatory life term pursuant to [Florida

Statutes section] 775.087(1)(b),” which “caused [him] to blindly enter into an

unknowing and unintelligent plea.” Id. at 7, 19. The trial court dismissed the

motion as impermissibly successive and cautioned Petitioner not to file further

frivolous pro se motions. Id. at 114, 116. The court also dismissed the motion as

moot because Petitioner had been resentenced. Id. at 115. On the merits, the

court found Petitioner’s claim “conclusively refuted by the record.” Id. at 116.

Petitioner appealed the denial of his 2019 Rule 3.850 Motion. Ex. O at 2.

The First DCA per curiam affirmed the trial court’s order without a written

opinion and issued its mandate. Ex. Q. Petitioner filed yet another pro se motion

for postconviction relief in the trial court, arguing the trial court was without

jurisdiction to resentence him without ordering a presentence investigation

report (“PSI”). Ex. R at 5-6. The trial court denied his motion, finding the court

“had jurisdiction to sentence [Petitioner] even though it did not order a PSI

prior to sentencing [him, a first-time juvenile offender,] pursuant to a

negotiated plea.” Id. at 41. The trial court again cautioned Petitioner against

filing future frivolous pro se motions. Id. at 42. Through counsel, Petitioner

appealed. Ex. S at 2. The First DCA per curiam affirmed without a written

opinion and issued its mandate. Ex. U.

IV. Analysis

Petitioner raises four Grounds of ineffective assistance of resentencing

counsel, and one Ground of trial court error. Doc. 1 at 4-10, 13.

A. Ground One

Petitioner argues his resentencing counsel (Bossen) was ineffective for

failing to advise him on remand for resentencing that he could have moved to

withdraw his guilty plea and proceed to a trial. Id. at 4-5. According to

Petitioner, he “was advised to consent to be resentenced to the same prison term

he could have received had he been found guilty as charged [of first-degree

murder] at trial.” Id. at 5. He asserts that had he been “properly advised,” he

would have opted to withdraw his plea because “the possibility of a jury verdict

on any lesser included offense would have mandated the imposition of a

Youthful Offender sentence [of] no more than four years in prison coupled with

no more than two years probation.” Id.

Respondents argue Petitioner did not exhaust this Ground because he did

not raise this claim in state court. Doc. 6 at 15. Petitioner acknowledges as much

in his Petition and Reply, but he invokes the Martinez exception because he was

not represented by counsel in his postconviction proceedings. Doc. 1 at 5; Doc.

7 at 1-2. Under Martinez, Petitioner must demonstrate the underlying

ineffective-assistance-of-counsel claim “is a substantial one, which is to say that

[he] must demonstrate that the claim has some merit.” 566 U.S. at 14. See also

Lambrix v. Sec’y Fla. Dept. of Corr., 851 F.3d 1158, 1164 (11th Cir. 2017).

Conversely, a claim is “insubstantial” if “it does not have any merit or . . . is

wholly without factual support.” Martinez, 566 U.S. at 16. Even if Petitioner

shows his lack of postconviction counsel caused his procedural default, he

cannot show the underlying ineffective-assistance-of-counsel claim is

substantial.

Here, following the Supreme Court’s decision in Miller, the First DCA

remanded Petitioner’s case to the trial court for resentencing. Ex. E at 4-5. At

the evidentiary hearing on Petitioner’s 2018 Rule 3.850 Motion, Bossen testified

that he was appointed for the limited purpose of resentencing, in accordance

with the mandate. Ex. I at 122-24, 131. He recalled Petitioner asking him about

his plea, but it was Bossen’s understanding that under a Miller resentencing—

which was like “treading new water at that time”—Petitioner was “limited” in

his options: either proceed to “a resentencing hearing in front of the Judge or …

work[] out a deal with the State.” Id. at 121. Bossen testified that he instructed

Petitioner, “It was the sentence that was being basically negotiated or decided,

not the reentering to the plea.” Id. at 130.

Assuming Petitioner, procedurally, could have filed a motion to withdraw

his plea after remand, but Bossen failed or refused to do so, Petitioner cannot

“show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

See Strickland, 466 U.S. at 694. According to Petitioner, had the trial court

granted a motion to withdraw his plea and set the case for trial on the state’s

charge of first-degree murder, “the possibility of a jury verdict on any lesser

included offense would have mandated the imposition of a Youthful Offender

sentence [of] no more than four years[.]” Doc. 1 at 4-5. The Court disagrees.

First, Petitioner offers no basis upon which a motion to withdraw his plea

would have been successful. Florida Rule of Criminal Procedure 3.170

addresses the circumstances under which a criminal defendant may withdraw

a plea, but the standard differs when such a motion is made before versus after

sentencing. Subsection (f) provides in pertinent part, “The court may in its

discretion, and shall on good cause, at any time before a sentence, permit a plea

of guilty or no contest to be withdrawn . . . .” Fla. R. Crim. P. 3.170(f). Subsection

(l), on the other hand, limits the circumstances in which a plea may be

withdrawn after a sentence has been imposed, to the following: a trial court’s

lack of subject matter jurisdiction; violation of the plea agreement; an

involuntary plea; a sentencing error; or as otherwise provided by law. Fla. R.

Crim. P. 3.170(l) (citing Fla. R. App. P. 9.140(b)(2)(A)(ii)(a)-(e)).

Given Petitioner had already been sentenced and was before the trial

court for resentencing following remand by the First DCA, it is unclear whether

the more liberal standard set forth in Rule 3.170(f), or the more stringent

standard set forth in Rule 3.170(l), would have applied. Compare Saffold v.

State, 374 So. 3d 836, 838, 840 (Fla. 4th DCA 2023) (holding the defendant was

not entitled to move to withdraw his plea “under the more liberal standard of

[R]ule 3.170(f) after a reversal and remand for resentencing” because such a

practice would “allow[] the defendant the right to have a ‘swift change of heart,’

knowing what sentence may likely be imposed”), with Scott v. State, 331 So. 3d

297, 300-01 (Fla. 2d DCA 2021) (holding the postconviction court should have

considered the defendant’s motion to withdraw his plea under Rule 3.170(f)

because he filed it after his first sentence was vacated but before he was

resentenced). Indeed, the Fourth District Court of Appeal, in Saffold, certified

conflict with the Second District’s decision in Scott, and the Florida Supreme

Court granted review. Saffold v. State, No. 2023-1749, 2024 WL 1714495 (Fla.

Apr. 22, 2024) (oral argument held Nov. 6, 2024).

Even under the more liberal standard, a defendant seeking to withdraw

his plea must offer some basis upon which to do so:

Rule 3.170(f), Florida Rules of Criminal

Procedure, provides that “the court may, in its

discretion, and shall upon good cause, at any time

before a sentence, permit a plea of guilty to be

withdrawn” (emphasis supplied). The burden is upon a

defendant to establish good cause under the rule, and

use of the word “shall” indicates that such a showing

entitles the defendant to withdraw a plea as a matter

of right. Use of the word “may,” however, suggests that

the rule also allows, in the discretion of the court,

withdrawal of the plea in the interest of justice, upon a

lesser showing than good cause. In any event, this rule

should be liberally construed in favor of the defendant.

Adler v. State, 382 So. 2d 1298, 1300 (Fla. 3d DCA

1980). The law inclines toward a trial on the merits;

and where it appears that the interests of justice would

be served, the defendant should be permitted to

withdraw his plea. Morton v. State, 317 So. 2d 145, 146

(Fla. 2d DCA 1975). A defendant should be permitted

to withdraw a plea “if he files a proper motion and

proves that the plea was entered under mental

weakness, mistake, surprise, misapprehension, fear,

promise, or other circumstances affecting his rights”

(emphasis supplied). Baker v. State, 408 So. 2d 686, 687

(Fla. 2d DCA 1982).

Robinson v. State, 761 So. 2d 269, 274 (Fla. 1999) (quoting Yesnes v. State, 440

Fla. 1st DCA 1983) (citations cleaned up)).

Neither in his Petition nor his Reply does Petitioner identify any cause to

have withdrawn his plea under the circumstances. For instance, he does not

argue he was coerced, unaware of his rights, mentally incompetent, or

otherwise unaware or mistaken about the terms or consequences of his plea.

See Doc. 1 at 4-5; Doc. 7 at 2-3. Regardless, the record demonstrates Petitioner

was represented by retained counsel, who helped him negotiate the plea deal

after conducting discovery, and the plea forms and his plea colloquy

demonstrate he entered his plea voluntarily and knowingly.

Under the plea agreement, which Petitioner and his retained trial counsel

signed, Petitioner agreed as follows, in pertinent part:

I have negotiated my case and have agreed that I

shall plea[d] guilty to Second Degree Murder, a lesser

included offense, and be facing a sentencing range of 40

years to Life in Florida State Prison. I also understand

the Court will impose the 25 year minimum mandatory

pursuant to Section 775.087(2) of Florida Statutes (10-

20-Life), and the Court has the discretion to make any

portion of the sentence a minimum mandatory, up to

Life in Florida State Prison

. . . . I understand that I can receive any lawful

sentence ranging from 40 years in Florida State Prison

with a 25 year minimum mandatory sentence, up to

Life in Florida State Prison, with Life as a minimum

mandatory sentence.

Ex. C at 2. Petitioner also signed a separate agreement in which he waived his

rights to sentencing procedures under Florida Statutes section 985.233, “which

provides for special considerations by the Court . . . [for] a juvenile.” Id. at 5-8.

He expressly waived his right to a “presentence investigation” and “a hearing

regarding the suitability of adult or juvenile sanctions.” Id. at 7.

At the plea hearing, Petitioner’s counsel said that she advised Petitioner

she was concerned about the plea agreement because of the sentencing range,

but Petitioner insisted on “accept[ing] responsibility” for his actions. Ex. R at

95. The trial court accepted the factual proffer offered by the State, and the

following colloquy took place:

THE COURT: Okay. I do find a factual basis.

Mr. Southern, your attorney has indicated you wish to

enter a plea of guilty to the lesser offense of second

degree murder. That is first punishable by life and with

the firearm charge does carry a life minimum

mandatory.

The negotiated plea here is that you would face

at the bottom 40 years with a 25 year minimum

mandatory at the bottom up to life, with a life minimum

mandatory.

Do you understand that?

[PETITIONER]: Yes, ma’am.

THE COURT: Is that what you wish to do

here today?

[PETITIONER]: Yes, ma’am.

Id. at 98-99.

The court reiterated two more times that Petitioner was “facing up to life

minimum mandatory,” and each time, Petitioner said he understood. Id. at 100,

106. Petitioner further acknowledged that his counsel had reviewed the

evidence and discovery with him, including witness depositions and expert

reports. Id. at 100-01. Petitioner said he had discussed both the plea agreement

and the waiver of his “rights under the juvenile statute” with his attorney, and

he acknowledged his signature on both forms. Id. at 102-03.

Petitioner also acknowledged the constitutional rights he was waiving by

entering his plea. Id. at 99-100. He testified that no one had threatened or

coerced him into entering his plea, nor had anyone promised him anything in

exchange for his plea. Id. at 100. He said he was entering his plea freely,

willingly, and voluntarily; was not under the influence of any drugs or alcohol;

had not been diagnosed with any mental health issues; and was afforded

sufficient opportunity to speak with his family and his attorney about his plea.

Id. at 100, 103-04. The trial court accepted Petitioner’s plea, finding it was

“freely and voluntarily entered with a full understanding of the [con]sequences

thereof.” Id. at 105.

Not only does Petitioner fail to identify any cause to have withdrawn his

guilty plea, but he speculates that a jury may have acquitted him or found him

guilty of a lesser-included offense, which “would have mandated the imposition

of a Youthful Offender sentence [of] no more than four years.” See Doc. 1 at 4.7

His speculative assertions are insufficient and legally incorrect. Had Petitioner

withdrawn his plea and proceeded to a trial, he would have been tried on a

charge of first-degree murder. Such a charge is a capital offense, which is not

eligible for youthful offender sentencing. Fla. Stat. § 958.04(1)(c) (“[A] person

7 Under Florida’s youthful offender statute, unless a person “has been found guilty of

a capital or life felony,” a trial court may impose a youthful offender sentence to

include “a split sentence whereby the youthful offender is to be placed on probation or

community control upon completion of any specified period of incarceration; however,

if the incarceration period is to be served in a department facility other than a

probation and restitution center or community residential facility, such period shall

be for not less than 1 year or more than 4 years.” Fla. Stat. § 958.04(1), (2)(c).

who has been found guilty of a capital or life felony may not be sentenced as a

youthful offender under this act.”).

The charge to which Petitioner pled—second-degree murder with a

firearm—also was not eligible for a youthful offender sentence because second-

degree murder is a first-degree felony punishable by imprisonment for a term

of years not exceeding life. Fla. Stat. § 782.04(2). And because Petitioner

indisputably used a firearm, the charge was reclassified as a life felony. Fla.

Stat. 775.087(1)(a) (providing for enhancement “of a felony of the first degree,

to a life felony,” if the perpetrator used a firearm, the use of which is not an

essential element of the crime).8 See also State v. Watlington, 305 So. 3d 774,

776 (Fla. 2d DCA 2020) (“[T]he Florida Youthful Offender Act expressly

precludes youthful offender sentencing for any ‘person who has been found

8 Assuming arguendo Petitioner had been convicted of a crime for which he could have

been eligible for youthful offender sentencing, Petitioner’s contention that a youthful

offender sentence would have been “mandated” is incorrect. The imposition of a

youthful offender sentence is discretionary. Fla. Stat. § 958.04(1) (“The court may

sentence as a youthful offender any person [who qualifies under the statute].”

(emphasis added)). See also Fine v. State, 312 So. 3d 1057, 1062 (Fla. 1st DCA 2021)

(“[A] trial court is under no obligation to impose a youthful offender sentence.”);

Simpkins v. State, 784 So. 2d 1203, 1204 (Fla. 2d DCA 2001) (“The decision whether

to sentence a defendant as a youthful offender is discretionary with the trial court.”).

Based on the record, the trial court likely would not have considered a youthful

offender sentence. In its sentencing order, the trial court characterized the murder as

“heinous,” “calculated,” and “ruthless.” Ex. H at 8, 14. Additionally, at Petitioner’s

sentencing hearing, the trial court expressly said his conduct was not attributable to

an adolescent response to “an emotionally charged situation,” and it was not

“immature, rash, [or] impulsive.” Id. at 255. Rather, the trial court found Petitioner

behaved as an adult, capable of “focused decision making,” and described the murder

as “planned out, premeditated, [and] cold and calculated.” Id.

guilty of a capital or life felony.’ § 958.04(1)(c). This prohibition includes felonies

that have been enhanced to life felonies under section 775.087(1)(a).”); Postell

v. State, 971 So. 2d 986, 989 n.5 (Fla. 5th DCA 2008) (“Section 775.087

mandates the reclassification of a first-degree felony to a life felony when,

during the commission of the felony, ‘the defendant carries, displays, uses,

threatens to use, or attempts to use any weapon or firearm, or during the

commission of such felony the defendant commits an aggravated battery,’ so

long as the use of a weapon or firearm is not an essential element of the

felony.”).

Based on the state’s factual proffer at Petitioner’s plea hearing, there was

ample evidence to support a murder conviction on a charge that was subject to

enhancement for the use of a firearm. At the plea hearing, the prosecutor

explained as follows:

Both [Petitioner and his co-defendant9] outlined

that they were both armed with handguns. Both of

them indicated in their video-taped proffers that

[Petitioner] Charles Southern was the one who drove to

th[e] location [where they shot the victim].

Charles Southern and [his co-defendant] had

previously discussed what they were going to do before

they arrived at that location, and that [sic] Charles

Souther[n] was, in fact, the person who was the first to

shoot and ambush [the victim] when he fired and shot

her in the head sending her to the ground.

9 Petitioner’s co-defendant pled first.

. . . . [Petitioner], in his proffer, . . . [said] that

part of the reason why they stole the guns is they

intended to commit robberies and that this killing was

in preparation so that they would know what it felt like

and what they needed to do when they actually pulled

the trigger during the course of a robbery attempt.

Ex. R. at 97-98.

The trial court’s sentencing order (on resentencing after remand) provides

more facts describing the “premeditated, calculated, and heinous way in which

[Petitioner] committed the offense”:

[The day the victim’s parents reported her

missing,] a bicyclist found what was believed to be [the

victim’s] body a short distance from [University

Christian School]. Upon arrival, law enforcement

located the body of a girl, wearing a University

Christian polo shirt and black slacks, along a muddy

back road near a ditch. As Detective Bowers stated

during his testimony at the original sentencing

hearing, law enforcement found [the victim] with bullet

wounds to the head, describing the bullet wounds as

being of such a magnitude that they “actually exploded

the face.” . . . .

The medical examiner reconstructed [the

victim’s] face to recreate the trajectory of both bullet

wounds. An autopsy revealed that the first shot struck

the left cheek and went through the upper jaw down

toward [the victim’s] neck. . . . .

Evidence technicians worked through the night,

created casts of tire tracks in the mud, and ultimately

determined that the tracks went to and from the

location of [the victim’s] body. Based upon the casts,

law enforcement determined it was a truck or SUV.

Law enforcement canvassed the school parking lot

looking for a truck or SUV, and came across

[Petitioner’s] truck. The tread on his truck looked like

the casts taken by the evidence technicians. Law

enforcement noticed the truck had recently been

cleaned, absent the fresh mud underneath a mirror and

underneath the muffler.

Law enforcement met with school security and

reviewed video surveillance of the campus from the day

of [the victim’s] murder. Video surveillance showed

that at 3:15 p.m., the co-defendant walked towards the

front of the school with [the victim]. Shortly thereafter,

the co-defendant returned to the school with

[Petitioner], and both individuals can be seen laughing

on the surveillance footage.

Law enforcement interviewed [Petitioner], after

seeing his vehicle in the parking lot during the canvass,

and found his mannerisms and behavior suspicious.

Law enforcement conducted a second interview with

[Petitioner], during which he disavowed any knowledge

or participation in [the victim’s] murder. Instead,

[Petitioner] stated that he got in his truck, drove

around Jay Ray Circle on the school’s campus, and

lifted weights with the co-defendant on the day in

question. When confronted with a significant time

lapse in surveillance footage of [Petitioner] and co-

defendant getting in the truck and appearing on Jay

Ray Circle, [Petitioner] could offer no explanation. Law

enforcement went to [Petitioner’s] home to complete a

search and retrieved the boots [Petitioner] was wearing

in the security footage from the day of the murder.

Using an alternative light source on the boots, which is

used to detect human blood, law enforcement found

indications of a substance that reflected on the boots.

[Petitioner] later admitted that he hid the firearm he

used to commit the instant offense in a vent in his home

at the time law enforcement searched his home.

After learning that his co-defendant was

speaking to law enforcement, [Petitioner] contacted

Detective Bowers and stated that he watched the co-

defendant kill [the victim]. During a subsequent

interview, however, [Petitioner] ultimately admitted to

firing the first shot at [the victim’s] face. [Petitioner]

stated he had his gun out and he was playing with it,

explaining he was trying to “scare the shit out of [the

victim].” When asked if he scared her, [Petitioner]

laughed and said he did, but stated that he did not

mean to shoot [her].

. . . . Prior to the murders [sic], [Petitioner] and

his co-defendant stole firearms from a friend’s house;

[Petitioner] served as a lookout during the theft. Law

enforcement learned [Petitioner] was the first to bring

a firearm to school. On the day of the murder, [the

victim] asked the co-defendant, a close friend, if she

could spend time with him after school. Unbeknownst

to [the victim], both [Petitioner] and the co-defendant

previously agreed that this was the day they would

murder someone, and they chose their close friend . . .

to be their target. Notably, [Petitioner] disclosed to

another student his plans on the day of the murder.

[Petitioner] told the fellow student that he made plans

to murder [the victim] with the co-defendant during

lunch.

Following the murder, [Petitioner] took steps to

cover his involvement in the crime. [He] took his car to

the carwash to have it cleaned and threw [the victim’s]

jacket in a trashcan to dispose of any evidence that

would tie him to the scene of the crime. [He] also drove

to the Palm Valley area in Ponte Vedra Beach, Florida,

and threw the gun in a marsh. Law enforcement

ultimately recovered the firearm in the marsh after

[Petitioner] admitted where he threw the weapon.

[Petitioner] was seventeen years old at the time of the

offense.

Ex. H at 2-5, 14 (internal citations omitted).

Petitioner and his co-defendant both testified at their joint sentencing

hearing, and they admitted to having formulated a plan to kill the victim. Id. at

76, 159. In executing their plan, they drove the victim in Petitioner’s truck to a

park near the school; both had guns with them, which they previously stole from

another friend; and, after giving his co-defendant a pre-planned “signal,”

Petitioner shot the victim in the side of her face when she was not looking. Id.

at 76-79, 157-59. Petitioner admitted that he called the victim “an easy victim,”

and he took the first shot to impress his friend (his co-defendant).10 Id. at 154,

160. He also admitted to trying to cover up what he had done. Id. at 154-55. The

psychologist who testified on Petitioner’s behalf stated that Petitioner “did not

appear to be in denial that he was culpable” and was “resigned to the fact that

he [would] be spending a significant portion of his life in prison.” Id. at 93, 94.

Given the evidence the state would have adduced at trial, a jury likely

would have convicted him as charged, which would have made him ineligible

for youthful offender sentencing. Petitioner’s speculative assertion that he

potentially could have been acquitted by a jury is insufficient to demonstrate

prejudice. “[U]nder Strickland, a defendant cannot, as a matter of law,

demonstrate prejudice by relying on the possibility of a jury pardon, which by

10 At the sentencing hearing, the lead detective said that when Petitioner’s co-

defendant walked the victim out of school and to Petitioner’s truck, he “was leading a

lamb to slaughter.” Ex. H at 197.

definition assumes that the jury would have disregarded the law, the trial

court’s instructions, and the evidence presented.” Sanders v. State, 946 So. 2d

953, 956 (Fla. 2006).

Because Petitioner’s ineffective assistance of counsel claim is

insubstantial and lacks merit, Petitioner cannot rely on Martinez to excuse the

procedural default of this claim. Likewise, Petitioner has failed to demonstrate

that failure to consider this claim on the merits will result in a fundamental

miscarriage of justice. Ground One is due to be denied.

B. Ground Two

Petitioner argues his resentencing counsel was ineffective for incorrectly

advising him that the only way for him to receive the benefit of the 25-year

judicial review of his sentence under Florida’s juvenile sentencing legislation

was to enter the consent order. Doc. 1 at 6-7. He says he was “affirmatively

misled into believing that if he failed to accept the resentencing agreement[,]

he would go through the full-blown resentencing hearing and receive a sentence

with no possibility of release whatsoever—no parole, no judicial review, no

nothing.” Id. at 7.

Respondents argue Petitioner did not exhaust this Ground because he did

not raise the claim on appeal from the denial of his postconviction motion. Doc.

6 at 19. Petitioner maintains he did exhaust this claim because he raised it in

his 2018 Rule 3.850 Motion, Doc. 1 at 8, and he says there is “contradictory

language” in the relevant rules of appellate procedure regarding whether all

issues must be briefed, Doc. 7 at 4 (citing Walton v. State, 35 Fla. L. Weekly

D856 (Fla. 2d DCA 2010), withdrawn and superseded, 58 So. 3d 887 (Feb. 11,

2011); Norwood v. State, 39 So. 3d 336 (Fla. 2d DCA 2011), withdrawn and

superseded, 67 So. 3d 270 (Mem) (Mar. 16, 2011)).

Petitioner received an evidentiary hearing on his 2018 Rule 3.850 Motion.

Ex. J at 38-39. As such, he was required to file an appellate brief. Fla. R. App.

P. 9.141(b)(3)(C). Under Florida law, when a brief is required, any issue not

raised is considered abandoned. Prince v. State, 40 So. 3d 11, 12 (Fla. 4th DCA

2010) (holding the appellant waived issues not raised in his brief on appeal from

the denial of a postconviction motion on which he received an evidentiary

hearing); Atwater v. Crosby, 451 F.3d 799, 809-10 (11th Cir. 2006) (“Pursuant

to state procedural rules, abandonment of an issue results from submission of

a brief without argument thereon in an appeal of an order denying relief after

an evidentiary hearing.” (citing Shere v. State, 742 So. 2d 215, 217 n.6 (Fla.

1999)). See also Cortes v. Gladish, 216 F. App’x 897, 899-900 (11th Cir. 2007)

(noting as dicta that if a petitioner “received an evidentiary hearing, his failure

to address issues in his appellate brief would constitute a waiver”); Myers v.

Sec’y, Fla. Dep’t of Corr., No. 19-14060-A, 2020 WL 6156872, at *1 (11th Cir.

Jan. 29, 2020)11 (noting the petitioner waived the claims he failed to brief on

appeal following the denial of his Rule 3.850 motion in which an evidentiary

hearing was held).

In his 2018 Rule 3.850 Motion, Petitioner argued his resentencing counsel

was ineffective for telling him the only way he could qualify for a 25-year

judicial review of his sentence under the new juvenile sentencing laws was to

enter the consent agreement and waive his right to a new sentencing hearing;

failing to raise the possibility that he could have been sentenced as a youthful

offender; and failing to move for the recusal of the trial judge after she allegedly

told counsel before resentencing that “she would impose no sentence less than

life, regardless of mitigation for [Petitioner’s] crime of Second Degree Murder.”

Ex. I at 6-7, 10-11. In a written order, the trial court denied Petitioner’s 2018

Rule 3.850 Motion on the merits. Id. at 53. Separately, the trial court also

denied Petitioner’s motion for the appointment of counsel, finding that his pro

se filings were well written and “well-thought out.” Id. at 48, 118.

On appeal from the denial of his 2018 Rule 3.850 Motion, Petitioner

identified two issues, although he primarily argued the trial court erred by not

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

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

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

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

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

appointing him counsel to represent him in his postconviction proceedings. Ex.

J at 3-4, 10-11. He did not seek review of the trial court’s ruling on the

ineffective-assistance-of-counsel claims he raised in his 2018 Rule 3.850 Motion.

See id. Because Petitioner did not appeal the issue he raises in Ground Two of

his Petition, he did not “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.” See O’Sullivan, 526 U.S. at 845.

Having abandoned the issue on appeal from the denial of his 2018 Rule

3.850 Motion, Petitioner failed to exhaust his state court remedies, resulting in

a procedural default of this claim. See Baker v. Dep’t of Corr., Sec’y, 634 F. App’x

689, 693 (11th Cir. 2015) (affirming the district court’s conclusion that the

petitioner’s claim “was not exhausted in state court because [he] abandoned it

on appeal” in his postconviction proceedings). Petitioner does not demonstrate

cause for and prejudice from the procedural default, nor does he demonstrate

that a fundamental miscarriage of justice will result if this claim is not

addressed on the merits. Because the claim raised in Ground Two is

unexhausted, it is due to be denied.

C. Ground Three

Petitioner argues his resentencing counsel was ineffective for failing to

move for the recusal of the trial judge, who allegedly told counsel before

resentencing that she would not consider a sentence other than life. Doc. 1 at 8-

9.12 Respondents argue Petitioner did not exhaust this Ground because, as with

Ground Two, he abandoned the claim on appeal from the denial of his 2018 Rule

3.850 Motion. Doc. 6 at 28. Petitioner does not address this Ground in his Reply,

see generally Doc. 7, but in his Petition, he claims to have raised this claim on

appeal, Doc. 1 at 10.

Contrary to Petitioner’s contention in his Petition, he did not raise this

claim in his brief on appeal. See Ex. J at 3-4, 10-11. As such, he did not “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.” See O’Sullivan, 526 U.S. at 845. Having abandoned the issue on appeal

from the denial of his 2018 Rule 3.850 Motion, Petitioner failed to exhaust his

state court remedies, resulting in a procedural default of this claim. See Baker,

634 F. App’x at 693. Petitioner does not argue cause for and prejudice from the

procedural default, nor does he assert that a fundamental miscarriage of justice

will result if this claim is not addressed on the merits. Because the claim raised

in Ground Three is unexhausted, it is due to be denied.

D. Ground Four

Petitioner argues his resentencing counsel was ineffective for failing to

advise him that, in resentencing him, the trial court would “reclassify the

12 At the evidentiary hearing on Petitioner’s 2018 Rule 3.850 Motion, Bossen

disavowed that the trial judge ever made such a comment to him. Ex. I at 137-38.

degree of the offense” such that a life sentence would be mandatory. Doc. 1 at

10-11. Petitioner explains that he was led to believe he could receive a term of

years as opposed to life but was not told the trial court would “reclassify the

degree of the offense from second degree murder, a felony of the first degree, to

second degree murder with a firearm where death occurred, a life felony.” Id. at

11. As in Ground One, Petitioner claims that had he been properly advised, he

“would have moved to withdraw the underlying plea of guilty,” or “at the very

least,” not waived his right to a full resentencing hearing. Id. at 10.

Respondents argue Petitioner did not exhaust this Ground because he did

not present the claim in state court. Doc. 6 at 32. Petitioner does not address

the exhaustion argument in his Reply, but in his Petition, he claims to have

exhausted this Ground through the filing of his 2019 Rule 3.850 Motion. Doc. 1

at 12. However, in that postconviction motion, Petitioner argued his trial

counsel (Peoples-Waters)—not his resentencing counsel (Bossen)—was

ineffective for “failing to adequately advise [him] that his plea would

automatically result in a minimum mandatory life term pursuant to Fla. Stat.

775.087(1)(b).” Ex. N at 7. He sought to withdraw his plea as involuntary given

his trial counsel’s allegedly bad advice, which he claims to have discovered for

the first time at the evidentiary hearing on his 2018 Rule 3.850 Motion following

resentencing. Id. at 8.

Because Petitioner did not raise this claim in state court, he failed to

exhaust his state court remedies, resulting in a procedural default of this claim.

He does not argue cause for and prejudice from the procedural default, nor does

he assert that a fundamental miscarriage of justice will result if this claim is

not addressed on the merits. See generally Doc. 7. Because the claim raised in

Gound Four is unexhausted, it is due to be denied.

E. Ground Five

Petitioner argues the trial court erred because it “acted without

jurisdiction by resentencing [him] without ordering, reviewing and considering

the statutorily required presentence investigation.” Doc. 1 at 13. Respondents

contend that Petitioner failed to fairly present the federal nature of this claim

in state court, and as such, his claim is unexhausted and procedurally

defaulted. Doc. 6 at 36-37.

Petitioner raised this claim in his 2019 Rule 3.850 Motion, arguing the

trial court did not comply with “the procedural requirements of [Rule]

3.710(a)”13 of the Florida Rules of Criminal Procedure. Ex. R at 6-7. He appealed

the summary dismissal of his motion, arguing his sentence should be vacated

13 This rule provides in pertinent part, “No sentence or sentences other than probation

or the statutorily required mandatory minimum may be imposed on any defendant

found guilty of a first felony offense or found guilty of a felony while under the age of

18 years, until after such investigation has first been made and the recommendations

of the Department of Corrections received and considered by the sentencing judge.”

Fla. R. Crim. P. 3.710(a).

because the trial court lacked jurisdiction to resentence him in the absence of a

PSI as required by Florida Rule of Criminal Procedure 3.710(a). Ex. S at 3, 8.

To the extent Petitioner urges that the state court erred under Florida

law when it resentenced him without a PSI, this claim is not cognizable on

federal habeas review. The writ of habeas corpus under 28 U.S.C. § 2254 “was

not enacted to enforce State-created rights.” Cabberiza v. Moore, 217 F.3d 1329,

1333 (11th Cir. 2000) (citing Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.

1988)). The purpose of a federal habeas proceeding is review of the lawfulness

of a petitioner’s custody to determine whether that custody is in violation of the

Constitution or laws or treaties of the United States. Coleman v. Thompson,

501 U.S. 722 (1991). Only in cases of federal constitutional error will a federal

writ of habeas corpus be available. Jones v. Goodwin, 982 F.2d 464, 471 (11th

Cir. 1993); Krasnow v. Navarro, 909 F.2d 451, 452 (11th Cir. 1990). It is not the

province of this Court to reexamine the state-court determination on an issue

of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “This limitation on

federal habeas review is of equal force when a petition, which actually involves

state law issues, is ‘couched in terms of equal protection and due process.’”

Branan, 861 F.2d at 1508 (quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th

Cir. 1976)).

To the extent Ground Five can liberally be construed as a federal

constitutional challenge, this claim is unexhausted because when briefing this

issue on appeal, Petitioner did not state or even suggest that it was a federal

claim about due process or equal protection. See Ex. S at 9-13. Instead,

Petitioner argued, in terms of state law only, that the trial court was without

jurisdiction to resentence him without first obtaining a PSI in accordance with

the Florida Rules of Criminal Procedure. See id.

For the reasons stated, the claim raised in Ground Five is not cognizable

or is unexhausted and procedurally defaulted, and Petitioner has failed to show

cause for or prejudice from this procedural bar. He also has failed to

demonstrate a fundamental miscarriage of justice. Thus, Ground Five is due to

be denied.

Accordingly, it is

ORDERED:

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

with prejudice.

2. 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.14

14 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

3. The Clerk shall enter judgment dismissing this case with

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

DONE AND ORDERED at Jacksonville, Florida, this 16th day of

September, 2025.

& Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

Jax-6

C:

Charles R. Southern, #J42332

Counsel of Record

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.

AO