Hanney v. Secretary, Department of Corrections (Hillsborough County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHRISTOPHER P. HANNEY,

Applicant,

v. CASE NO. 8:22-cv-2026-SDM-AAP

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Hanney applies (Doc. 1) under 28 U.S.C. § 2254 for the writ of habeas corpus

and challenges his convictions for attempted murder in the first degree, arson

involving a dwelling, and aggravated battery with both a deadly weapon and great

bodily harm, for which Hanney is imprisoned for life. Numerous exhibits

(“Respondent’s Exhibit”) support the response. (Doc. 12) The respondent admits

the application’s timeliness (Doc. 12 at 18) but argues both that some grounds are

procedurally barred from federal review and the remaining grounds lack merit.

I. BACKGROUND1

Hanney and his second wife (the victim of his crimes) were pursuing a

divorce; they agreed that Hanney would remain in his house, that Hanney would

1 This summary of the facts derives from the briefs on direct appeal. (Respondent’s Exhibits

10 and 11)

give the victim money both to rent an apartment with their two sons and to purchase

furniture, and that the victim would retain the ability to access the house. In

November 2009 the victim advised Hanney of her intent to access the house.

Because Hanney parked his car a “ten-minute-walk” away from the house on the day

of the planned visit, the victim believed that Hanney was not home when she

arrived. Upon entering the home, the victim encountered Hanney, who was naked

and holding a butcher knife. Hanney overpowered her and took her into the garage

where he attempted to anally sexually assault her, hit her in the head four times with

a hammer, doused her with gasoline, and set her aflame with a lit candle. When

both she and the garage “went up in flames,” the victim managed to escape through

a garage door at the front of the house and rolled in the grass to extinguish the fire.

A neighbor (who was an off-duty deputy sheriff) aided the victim and took the victim

into the neighbor’s house for a shower. The victim required a medically induced

coma for more than a month, seven surgeries, and three months in the hospital.

Seeing the house engulfed in flames, a nearby landscaper rushed to assist

Hanney, who was standing in the doorway at the back of the house. After the man

assisted Hanney away from the house, Hanney asked “Is the bitch dead?” and “Did I

kill the bitch?” (Respondent’s Exhibit 3 at 445) When the deputy sheriff arrived on

the scene and spoke with both the victim and Hanney, the victim told the deputy that

Hanney had “poured lighter fluid on me and set me on fire” and Hanney told the

deputy both that “I set her on fire” and that he had cut his own neck and wrist.

(Respondent’s Exhibit 3 at 478–79, 481, and 493) Later, Hanney told the hospital

chaplain that “he wanted to end his life and the life of his partner . . . .”

(Respondent’s Exhibit 3 at 1059)

By convicting Hanney of the charged offenses of attempted murder in the first

degree, arson involving a dwelling, and aggravated battery with both a deadly

weapon and great bodily harm, the jury necessarily rejected Hanney’s defense

(1) that inside the main part of the house the victim had retrieved a knife from the

kitchen and her masked male accomplice hit Hanney in the head and (2) that inside

the garage (a) he swung a hammer at the accomplice but instead hit the victim;

(b) the accomplice stabbed him in the stomach, pointed a firearm at him and

“zip-tied” him to a chair; (c) the victim brought into the garage a lit candle and a

plastic soda bottle that contained a liquid; and (d) he started kicking at the victim,

who suddenly “went up in a fire ball.” (Respondent’s Exhibit 3 at 953)

II. EXHAUSTION AND PROCEDURAL DEFAULT

The respondent argues that Hanney procedurally defaulted some grounds by

failing to fully exhaust his available state court remedies. An applicant must present

each claim to a state court before presenting the claim to a federal court.

“[E]xhaustion of state remedies requires that petitioners ‘fairly presen[t]’ federal

claims to the state courts in order to give 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) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). Accord Rose v.

Lundy, 455 U.S. 509, 518–19 (1982) (“A rigorously enforced total exhaustion rule

will encourage state prisoners to seek full relief first from the state courts, thus giving

those courts the first opportunity to review all claims of constitutional error.”). “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.” Baldwin v. Reese, 541 U.S. 27, 32 (2004) (citing Duncan).

Grounds One through Four and Thirteen

These five grounds allege claims of ineffective assistance of trial counsel that

Hanney admittedly failed to present to the state courts. Although each of these

grounds is unexhausted, Hanney asserts entitlement to review of the merits of each

ground under an exception to the exhaustion requirement established by Martinez v.

Ryan, 566 U.S. 1 (2012). This exception applies only if (1) a state requires a prisoner

to raise a claim of ineffective assistance of trial counsel in an initial review collateral

proceeding, (2) the prisoner failed to properly raise the ineffective assistance of trial

counsel claim in his state initial review collateral proceeding, (3) the prisoner did not

have collateral counsel or his collateral counsel was ineffective, and (4) the failure to

excuse the procedural default would result in the loss of a “substantial” claim of

ineffective assistance of trial counsel, which claim is characterized as having “some

merit.” Martinez, 566 U.S. at 14. Because a court must to some degree consider the

merits of each unexhausted claim, these five grounds are addressed later after the

exhausted claims of ineffective assistance of trial counsel (Grounds Five through

Seven and Nine through Twelve) are addressed on the merits.

Ground Eight:

Hanney alleges that trial counsel rendered ineffective assistance by failing to

move to withdraw based on a conflict of interest caused by counsel’s expressing to

Hanney her belief that he was guilty. Hanney alleged this ground as ground five in

his original motion for post-conviction relief, which the state court summarily denied

(Respondent’s Exhibit 27 at 15–17) finding that Hanney had abandoned the issue

during a pre-trial motion to terminate counsel when Hanney stated that he wanted

counsel to continue to represent him. Hanney’s initial brief (Respondent’s Exhibit

44) on appeal from the denial of post-conviction relief shows that the respondent

correctly argues that Hanney omitted this claim on appeal. The exhaustion

requirement is not met if a defendant fails to “fairly present” a claim to the state

courts by not briefing the claim in his initial brief. See Reese, 541 U.S. at 32; Upshaw

v. Singletary, 70 F.3d 576, 578 (11th Cir. 1995) (“[T]he applicant must have fairly

apprised the highest court of his state with the appropriate jurisdiction of the federal

rights which allegedly were violated.”).

The failure to properly exhaust each available state court remedy causes a

procedural default of the unexhausted claim. O’Sullivan v. Boerckel, 526 U.S. 838, 848

(1999) (“Boerckel’s failure to present three of his federal habeas claims to the Illinois

Supreme Court in a timely fashion has resulted in a procedural default of those

claims.”). State procedural rules preclude Hanney from returning to state court to

present his federal claim in a second, untimely direct appeal. See Fla. R. App. P.

9.140(b)(3). Hanney’s failure to properly present his federal claim in the state court

results in a procedural default. See Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir.

1998) (“[W]hen it is obvious that the unexhausted claims would be procedurally

barred in state court due to a state-law procedural default, we can forego the needless

‘judicial ping-pong’ and just treat those claims now barred by state law as no basis for

federal habeas relief.”).

As determined above, Hanney procedurally defaulted Ground Eight by not

briefing this claim on appeal from the denial of post-conviction relief. As a

consequence, the ground is barred from federal review absent a showing of “actual

cause and prejudice” or “manifest injustice.” See generally Coleman v. Thompson,

501 U.S. 722, 747–51 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986). The basis

for “cause” must ordinarily reside in something external to the defense. Marek v.

Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995). To show “prejudice,” the applicant

must show “not merely that the errors at his trial created the possibility of prejudice,

but that they worked to his actual and substantial disadvantage, infecting his entire

trial with error of constitutional dimensions.” Hollis v. Davis, 941 F.2d 1471, 1480

(11th Cir. 1991) (italics original) (quoting United States v. Frady, 456 U.S. 152, 170

(1982)). To meet the fundamental miscarriage of justice exception, Hanney must

show constitutional error coupled with “new reliable evidence — whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence — that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

This exception is not available unless “petitioner shows, as a factual matter, that he

did not commit the crime of conviction.” Ward v. Cain, 53 F.3d 106, 108 (5th Cir.

1995) (denying a certificate of probable cause). Hanney establishes neither “cause

and prejudice” nor a “fundamental miscarriage of justice.” Therefore, Ground Eight

is procedurally barred from federal review and not entitled to a determination on the

merits.

III. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th

Cir. 1998). Section 2254(d), which creates a highly deferential standard for federal

court review of a state court adjudication, states in pertinent part:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim —

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court

proceeding.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a

federal habeas court to grant a state prisoner’s application for a

writ of habeas corpus with respect to claims adjudicated on the

merits in state court. Under § 2254(d)(1), the writ may issue

only if one of the following two conditions is satisfied — the

state court adjudication resulted in a decision that (1) “was

contrary to . . . clearly established Federal Law, as determined

by the Supreme Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal law,

as determined by the Supreme Court of the United States.”

Under the “contrary to” clause, a federal habeas court may

grant the writ if the state court arrives at a conclusion opposite

to that reached by this Court on a question of law or if the state

court decides a case differently than this Court has on a set of

materially indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the writ if

the state court identifies the correct governing legal principle

from this Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, and . . . an unreasonable application is

different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “To meet

that standard, a prisoner must show far more than that the state court’s decision was

‘merely wrong’ or ‘even clear error.’” Shinn v. Kayer, 592 U.S. 111, 118 (2020)

(quoting Virginia v. LeBlanc, 582 U.S. 91, 94 (2017)). “As a condition for obtaining

habeas corpus from a federal court, a state prisoner must show that the state court’s

ruling on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103

(2011); see White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical point is that relief

is available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it is

so obvious that a clearly established rule applies to a given set of facts that there

could be no ‘fairminded disagreement’ on the question . . . .”) (citing Richter); Woods

v. Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable application of ’ those

holdings must be objectively unreasonable, not merely wrong; even clear error will

not suffice.”) (citing Woodall, 572 U.S. at 419); accord Brown v. Head, 272 F.3d 1308,

1313 (11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of

the state court decision that we are to decide.”). The phrase “clearly established

Federal law” encompasses only the holdings of the United States Supreme Court “as

of the time of the relevant state-court decision.” Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in

order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are

given effect to the extent possible under law.” Bell, 535 U.S. at 694. A federal court

must afford due deference to a state court’s decision. “AEDPA prevents defendants

— and federal courts — from using federal habeas corpus review as a vehicle to

second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766,

779 (2010); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult

to meet,’ . . . and ‘highly deferential standard for evaluating state-court rulings,

which demands that state-court decisions be given the benefit of the doubt’ . . . .”)

(citations omitted).

When the last state court to decide a federal claim issues a reasoned and

explanatory opinion, “a federal habeas court simply reviews the specific reasons

given by the state court and defers to those reasons if they are reasonable.” Wilson v.

Sellers, 584 U.S. 122, 125 (2018). When the relevant state-court decision is not

accompanied with reasons for the decision, the federal court “should ‘look through’

the unexplained decision to the last related state-court decision that does provide a

relevant rationale [and] presume that the unexplained decision adopted the same

reasoning.” Wilson, 584 U.S. at 125. The State may contest “the presumption by

showing that the unexplained affirmance relied or most likely did rely on different

grounds than the lower state court’s decision . . . .” Wilson, 584 U.S. at 125.

In a per curiam decision without a written opinion the state appellate court on

direct appeal affirmed Hanney’s convictions and sentence. (Respondent’s Exhibit

13) Similarly, in another per curiam decision without a written opinion, the state

appellate court affirmed the denial of Hanney’s Rule 3.850 motion for

post-conviction relief. (Respondent’s Exhibit 46) The state appellate court’s per

curiam affirmances warrant deference under Section 2254(d)(1) because “the

summary nature of a state court’s decision does not lessen the deference that it is

due.” Wright v. Sec., Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002); see also

Richter, 562 U.S. at 100 (“When a federal claim has been presented to a state court

and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any indication or state-law

procedural principles to the contrary.”); Bishop v. Warden, GDCP, 726 F. 3d 1243,

1255–56 (11th Cir. 2013) (describing the difference between an “opinion” or

“analysis” and a “decision” or “ruling” and explaining that deference is accorded the

state court’s “decision” or “ruling” even absent an “opinion” or “analysis”).

As Pinholster explains, 563 U.S. at 181–82, review of the state court decision is

limited to the state court record:

We now hold that review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim

on the merits. Section 2254(d)(1) refers, in the past tense, to a

state-court adjudication that “resulted in” a decision that was

contrary to, or “involved” an unreasonable application of,

established law. This backward-looking language requires an

examination of the state-court decision at the time it was made.

It follows that the record under review is limited to the record

in existence at that same time, i.e., the record before the state

court.

Hanney bears the burden of overcoming by clear and convincing evidence a state

court’s determination of fact. “[A] determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact

but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836

(11th Cir. 2001). The state post-conviction court’s rejection of Hanney’s claims

warrants deference in this federal action. (Respondent’s Exhibits 29 and 37)

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Hanney claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d

1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386

(11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an

ineffective assistance of counsel claim, as Sims v. Singletary, 155 F.3d 1297, 1305

(11th Cir. 1998), explains:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the

Supreme Court set forth a two-part test for analyzing ineffective

assistance of counsel claims. According to Strickland,

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient

performance prejudiced the defense. This

requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

An applicant must prove both deficient performance and consequent

prejudice. Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When

applying Strickland, we are free to dispose of ineffectiveness claims on either of its

two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct

on the facts of the particular case, viewed as of the time of counsel’s conduct.”

Strickland, 466 U.S. at 690. Strickland requires that “in light of all the circumstances,

the identified acts or omissions were outside the wide range of professionally

competent assistance.” Strickland, 466 U.S. at 690.

Hanney must demonstrate that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 690. To meet this burden, Hanney must show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. See

Pye v. Warden, Ga. Diagnostic Prison, 50 F. 4th 1025, 1041–42 (11th Cir. 2022) (en

banc) (brackets original) (“Applying AEDPA to Strickland’s prejudice standard, we

must decide whether the state court’s conclusion that [counsel’s] performance . . .

didn’t prejudice [petitioner] — that there was no substantial likelihood of a different

result — was so obviously wrong that its error lies beyond any possibility for

fairminded disagreement.”) (internal quotation marks omitted).

Under Section 2254(d), Hanney must prove that the state court’s decision

“(1) [was] contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or (2) [was]

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Sustaining a claim of ineffective assistance

of counsel is very difficult because “[t]he standards created by Strickland and

§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is

‘doubly’ so.” Richter, 562 U.S. at 105; see also Dunn v. Reeves, 594 U.S. at 739 (“This

analysis is ‘doubly deferential’ when, as here, a state court has decided that counsel

performed adequately.”); Pinholster, 563 U.S. 202 (An applicant must overcome this

“‘doubly deferential’ standard of Strickland and the AEDPA.”); Nance v. Warden, Ga.

Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (“Given the double deference due,

it is a ‘rare case in which an ineffective assistance of counsel claim that was denied

on the merits in state court is found to merit relief in a federal habeas proceeding.’”)

(quoting Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011)); Pooler v.

Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view

Pooler’s ineffective counsel claim — which is governed by the deferential Strickland

test — through the lens of AEDPA deference, the resulting standard of review is

‘doubly deferential.’”). “And in reviewing the work of their peers, federal judges

must begin with the ‘presumption that state courts know and follow the law.’ Or, in

more concrete terms, a federal court may grant relief only if every ‘fairminded juris[t]’

would agree that every reasonable lawyer would have made a different decision.”

Reeves, 594 U.S. at 739–40 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002), and

Richter, 562 U.S. at 101) (italics and brackets original).

During Hanney’s post-conviction proceedings, the state court summarily

denied a ground of ineffective assistance of trial counsel without an evidentiary

hearing and denied the other grounds after conducting an evidentiary hearing. In

both orders the state court correctly recognized that Strickland governs a claim of

ineffective assistance of counsel. (Respondent’s Exhibits 29 and 37) Consequently,

Hanney cannot meet the “contrary to” test in Section 2254(d)(1). Hanney instead

must show that the state court unreasonably applied Strickland or unreasonably

determined the facts. In determining “reasonableness,” the statute limits federal

review to determining only “whether the state habeas court was objectively

reasonable in its Strickland inquiry,” not to independently assess whether counsel’s

actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001).

The presumption of correctness and the highly deferential standard of review

requires that the analysis of each claim begin with the state court’s analysis.

A. IAC During Pre-Trial

Ground Five:

Hanney alleges that trial counsel rendered ineffective assistance by not moving

to suppress the victim’s allegation that he attempted to rape her. After holding an

evidentiary hearing on this claim, the post-conviction court’s order first reviews the

testimony from the evidentiary hearing (Respondent’s Exhibit 37 at 20–21)

(references to record omitted) (brackets original):

Defendant alleged the victim’s testimony regarding the

attempted rape was “highly inflammatory” and that Counsel

should have “filed a motion in limine to prevent any mention of

a crime that was never charged and where there was no proof it

ever occurred.” Defendant alleged that had Counsel filed this

motion in limine, there is a reasonable probability the court

would have granted the motion, prevented the victim from

testifying about the attempted rape. Defendant alleged “the jury

reached their verdict because of a false perception acquired

from the false and inadmissible accusation of [the victim]” and

“[t]here is a reasonable probability that had [Counsel] filed a

motion in limine, [Defendant] would not have been convicted

and would have been acquitted at trial.”

At the January 8, 2020 hearing, Counsel testified that she did

not file a motion in limine to preclude testimony from the

victim regarding Defendant’s alleged attempt to rape her during

the course of the incident. Counsel testified that she did not file

such a motion “[b]ecause it would have been viewed as

inextricably intertwined with the incident itself.” Counsel

testified that she saw filing that motion in limine resulting in

one of two outcomes: (1) the State choosing to charge the rape,

or (2) the State arguing that it was inextricably intertwined with

the charges. Counsel testified that “[e]ither way, [the testimony]

would be coming in.”

Additionally, trial counsel testified that part of her reasoning for not objecting

was her belief that Hanney could benefit from the testimony (Respondent’s Exhibit

34 at 177):

I thought that maybe there would be a benefit to the fact that

[the victim was] trying to make this more egregious and the

state didn’t file those charges.

Either way, it would be coming in. So to me, you’re not going

to win that and there’s at least some kind of benefit that the jury

hears that, well, he’s not charged with that. You know, why is

he not charged with that when she’s saying that happened.

The post-conviction court ruled that Hanney proved neither deficient performance

nor prejudice (Respondent’s Exhibit 37 at 21):

[T]he Court finds Defendant has failed to establish that

Counsel’s performance was ineffective because he failed to

prove Counsel acted deficiently or that Counsel’s actions

resulted in any prejudice. With regards to the decision to not

file a motion in limine to exclude testimony from the victim

regarding Defendant’s attempt to rape her, the Court finds

Counsel’s testimony credible and finds Counsel made a

reasonable strategic decision, one that as Defendant’s attorney,

she was entitled to make. Such a decision by a defendant’s

attorney does [not] amount to ineffective representation.

The state court ruled that Hanney proved neither deficient performance nor

prejudice and that trial counsel’s not moving to suppress the victim’s allegation that

Hanney attempted to rape her was a reasonable strategic decision. A federal habeas

corpus action authorizes a determination of only “whether the state habeas court was

objectively reasonable in its Strickland inquiry,” not an independent determination of

whether counsel’s actions were reasonable. Putnam, 268 F.3d at 1244, n.17. The

post-conviction court’s findings and determination are both supported by the state

court record and facially reasonable. Hanney fails to meet his burden under Section

2254(d) to show that the state court’s decision was either an unreasonable

application of clearly established Federal law or an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

Consequently, Ground Five lacks merit.

Ground Six:

Hanney alleges that trial counsel rendered ineffective assistance by not

deposing and calling as defense witnesses his ex-wife (Luz Hanney) and their

daughter (Angelie Hanney) to present evidence of the victim’s propensity for

violence. After holding an evidentiary hearing on this claim, the post-conviction

court denied relief (Respondent’s Exhibit 37 at 10–11) (references to record omitted)

(brackets original):

Counsel testified that she spoke with Luz Hanney, who told her

that during her marriage to Defendant there had been no

domestic violence. Counsel testified that Luz Hanney “didn’t

say that there was any kind of physical abuse,” and never told

her anything about witnessing any violence or acts of

aggression. Further, Counsel testified that she spoke to

Defendant about domestic violence and he always denied it and

said nothing about the victim being violent towards him.

Counsel also testified that she had no notes regarding the

victim’s mental instability, Defendant never asked her to look

into the victim’s mental instability, and Defendant never said

anything that gave her any reason to.

The Court finds that . . . Defendant has failed to establish that

Counsel’s performance was ineffective as he failed to prove

Counsel acted deficiently or that Counsel’s actions resulted in

any prejudice. With regards to the allegation Counsel failed to

sufficiently investigate the victim’s background, the Court finds

the claim to be without merit. The Court further finds that there

does not appear to be any mental instability or history of

violence by the victim that would have led to some other legal

relief for Defendant. The only evidence regarding the victim’s

history and tendency towards violence presented during the

hearing was testimony from Angelie Hanney, Luz Hanney, and

Defendant himself. Angelie Hanney and Luz Hanney’s

testimony consisted of anecdotes about minor incidents and

conflicts between the victim and Defendant, not of violence.

The Court finds the witnesses did not testify to the sort of

violence that, even if Counsel was aware of before trial, would

have made a difference in the trial’s results. The Court finds

Counsel was credible, and nothing presented by Defendant

during the evidentiary hearing indicated otherwise. There is

nothing in the record indicating Counsel overlooked

information that was available or readily discoverable upon

appropriate investigation that the victim was prone to violence.

The Court finds there are simply no facts to support this claim.

The post-conviction court’s findings are supported by the state court record

and the ruling is consistent with federal precedent. Strickland cautions that “strategic

choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable; and strategic choices made after less than

complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.” 466 U.S. at 690–

91. See Chandler v. United States, 218 F.3d 1305, 1318 n.23 (11th Cir. 2000)

(“Requiring that counsel always do certain acts to be found effective (for example,

interviewing some of petitioner’s neighbors for mitigation evidence) would

contravene the Supreme Court’s directive that no set of detailed rules for counsel’s

conduct should be used to evaluate ineffectiveness claims.”). Trial counsel must

decide which strategic and tactical option to pursue, such as deciding which witness

or defense to present. Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir.

2007) (“Even if counsel’s decision [to not call a certain witness] appears to have been

unwise in retrospect, the decision will be held to have been ineffective assistance only

if it was so patently unreasonable that no competent attorney would have chosen

it.”) (internal quotation omitted); Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.

1995) (“Which witnesses, if any, to call, and when to call them, is the epitome of a

strategic decision, and it is one that we will seldom, if ever, second guess.”) (en banc);

Blanco v. Singletary, 943 F.2d 1477, 1495 (11th Cir. 1991) (“The decision as to which

witnesses to call is an aspect of trial tactics that is normally entrusted to counsel.”).

See McDonald v. Sec’y, Dep’t of Corr., 578 F. App’x 921, 925 (11th Cir. 2014) (quoting

Blanco); Cook v. Warden, Ga. Diagnostic Prison, 677 F.3d 1133, 1137 (11th Cir. 2012)

(quoting Waters). Additionally, White v. Singletary, 972 F.2d 1218, 1220–21 (11th

Cir. 1992), explains that Hanney cannot meet his burden merely by showing that the

avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would

have done. Nor is the test even what most good lawyers would

have done. We ask only whether some reasonable lawyer at the

trial could have acted, in the circumstances, as defense counsel

acted at trial . . . . We are not interested in grading lawyers’

performances; we are interested in whether the adversarial

process at trial, in fact, worked adequately.

Consequently, Ground Six lacks merit.

Ground Seven :

Hanney alleges that trial counsel rendered ineffective assistance by not calling

an expert witness to testify that no trace of gasoline was discovered on his clothing.

This claim is slightly different from the claim he presented in state court, where he

faulted trial counsel for not having the clothing tested for the presence of gasoline.

Review of this ground is limited to the claim Hanney exhausted in state court

because the present variant is unexhausted. The post-conviction court summarily

denied relief with the following findings and analysis (Respondent’s Exhibit 31

at 6–8):

Defendant alleges that counsel rendered ineffective assistance

of counsel by failing to investigate whether the clothing he was

wearing at the time of the offense contained trace amounts of

gasoline. Defendant alleges that the State’s theory of

prosecution was that Defendant intentionally set the home on

fire by splashing and igniting gasoline in the residence.

Defendant alleges that this accusation was known by counsel

prior to trial through the normal discovery processes.

Defendant alleges that in closing argument, counsel argued that

state officials failed to examine Defendant’s van, which

presumably was used to retrieve and transport the gasoline, and

the clothing that Defendant was wearing at the time he

allegedly started the fires. Defendant alleges that he specifically

informed counsel that he did not retrieve any gasoline and carry

it in his van, nor did he splash gasoline in the home and ignite

any fires. Defendant alleges that he was confident that had his

clothing been tested, there would be no traces of gasoline

found.

Defendant alleges that the presence of gasoline on his clothing

would have been a clear indication that he committed the act of

arson as accused by the State, and there is no doubt such

evidence would have been used by the State as circumstantial

evidence against him. Defendant alleges, therefore, that the lack

of trace amounts of gasoline is a persuasive indication that he

did not splash gasoline as alleged by the State. Defendant

alleges that immediately after the offense, there were multiple

witnesses who assisted him, and not one witness even suggested

that Defendant smelled of gasoline, as would have been

expected had he splashed gasoline in multiple areas of his

home.

Defendant alleges that investigating the presence or absence of

trace amounts of gasoline in his clothing was a critical point

where the State’s theory could have been put to a proper

adversarial test. Defendant alleges that the lack of investigation

into such a key area is unprofessional error, and without this

evidence, the jury was left with the weight of the testimony of

state officials with regard to the presence of gasoline being

splashed in multiple areas of the home. Defendant alleges that

there is a reasonable probability that a competent jurist would

have found Defendant not guilty had counsel investigated

properly.

Upon review, the Court finds that no relief is warranted . . .

because Defendant is unable to demonstrate the necessary

prejudice under Strickland. Specifically, the Court finds that

even if counsel had investigated Defendant’s clothing and

found that the clothing did not contain trace amounts of

gasoline, this fact would not tend to prove or disprove that

Defendant committed the offense(s). See Galloway v. State, 802

So. 2d 1173, 1175 (Fla. lst DCA 2001) (finding that the absence

of DNA at the scene of the crime would not demonstrate that

the defendant was not present and participating); Scott v. State,

46 So. 3d 529, 534 (Fla. 2009) (concluding that it did not make

a difference in the case whether the defendant’s blood was

present at the crime scene) (citing Hitchcock, 866 So. 2d at 27).

As such, even if counsel had investigated the clothing,

Defendant is unable to demonstrate that there is a reasonable

likelihood that the outcome of the proceedings would have

been different.

The state court determined that Hanney failed to show the requisite prejudice

under Strickland because the proposed evidence would neither prove nor disprove the

conclusion that would be inferred from an expert witness’s testimony. The post-

conviction court’s findings are supported by the state court record and the ruling is

consistent with federal precent. For example, Hittson v. GDCP Warden, 759 F.3d

1210, 1267 (11th Cir. 2014), discusses the required extent of counsel’s investigation:

[W]e have explained that “no absolute duty exists to investigate

particular facts or a certain line of defense.” Chandler, 218 F.3d

at 1317. “[C]ounsel has a duty to make reasonable

investigations or make a reasonable decision that makes

particular investigations unnecessary.” Strickland, 466 U.S. at

691, 104 S. Ct. at 2066 (emphasis added). “[C]ounsel need not

always investigate before pursuing or not pursuing a line of

defense. Investigation (even a nonexhaustive, preliminary

investigation) is not required for counsel reasonably to decline

to investigate a line of defense thoroughly.” Chandler, 218 F.3d

at 1318. “In assessing the reasonableness of an attorney’s

investigation . . . a court must consider not only the quantum of

evidence already known to counsel, but also whether the

known evidence would lead a reasonable attorney to investigate

further.” Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538.

And as Dunn v. Reeves, 594 U.S. 731, 739 (2021) (italics original), explains, deference

is to both counsel’s and the state court’s decisions, recognizing that counsel decides

strategic options based on both limited resources and limited time.

[W]e owe deference to both Reeves’ counsel and the state court.

As to counsel, we have often explained that strategic decisions

— including whether to hire an expert — are entitled to a

“strong presumption” of reasonableness. Harrington v. Richter,

562 U.S. 86, 104, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).

Defense lawyers have “limited” time and resources, and so

must choose from among “ ‘countless’ ” strategic options. Id.,

at 106–107, 131 S. Ct. 770. Such decisions are particularly

difficult because certain tactics carry the risk of “harm[ing] the

defense” by undermining credibility with the jury or distracting

from more important issues. Id., at 108, 131 S. Ct. 770.

Consequently, Ground Seven lacks merit.

Ground Nine:

Hanney alleges that trial counsel rendered ineffective assistance by not filing a

motion asserting immunity from prosecution under Florida’s “Stand Your Ground”

law. After holding an evidentiary hearing on this claim, the post-conviction court

denied relief with the following findings and analysis (Respondent’s Exhibit 37 at

7–8) (references to record omitted):

Counsel testified that she and Defendant never discussed a

motion to dismiss based on self-defense. Counsel testified that

based on her conversations with Defendant, she understood his

version of what happened during the incident to be “kind of an

accident, kind of self-defense.” However, as time went on,

Counsel testified that Defendant’s version of events changed.

Counsel also testified that at the time of Defendant’s case, the

burden for a Stand Your Ground motion to dismiss was

different, meaning Defendant would have had the burden to

support his case, which would require him to testify. Counsel

testified she did not think this was a wise strategic choice

because having Defendant testify at a hearing would alert the

State to what they would need to investigate prior to trial

regarding Defendant’s version of events. Additionally, Counsel

testified she did not think the motion would be granted.

[T]he Court finds that . . . Defendant has failed to establish that

trial counsel’s performance was ineffective. The Court notes

there is a strong presumption that trial counsel’s performance

was not ineffective. See Strickland, 466 U.S. at 690. Further, the

defendant carries the burden to “overcome the presumption

that, under the circumstances, the challenged action ‘might’ be

considered sound trial strategy.” (quoting Michel v. Louisiana,

350 U.S. 91, 101 (1955)). “[S]trategic decisions do not

constitute ineffective assistance of counsel if alternative courses

have been considered and rejected and counsel’s decision was

reasonable under the norms of professional conduct.” Occhicone

v. State, 768 So. 2d 1037, 1048 (Fla. 2000).

With regards to the decision to not file a motion to dismiss

based on the Stand Your Ground defense, the Court finds that

Defendant failed to prove that Counsel acted deficiently when

Counsel made a reasonable strategic decision, one that defense

counsel is entitled to make. The Court finds Counsel’s

testimony credible. The Court further finds that Counsel made

her decision based on the case law in existence in 2010, 2011,

and 2012, and that this case law required Defendant to carry

the burden. Accordingly, the Court finds that Counsel made

her decision to not file a motion to dismiss in an effort to

protect Defendant, and that this decision was based on a

reasonable strategy. Accordingly, this decision does not amount

to ineffective representation.

The state court determined that Hanney failed to show that counsel’s not

moving to dismiss was deficient performance under Strickland. The state court

accepted trial counsel’s testimony over that of Hanney. Under 28 U.S.C.

§ 2254(e)(1), a federal court must defer to the state court’s findings of fact.

In a proceeding instituted by an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a

State court, a determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have

the burden of rebutting the presumption of correctness by clear

and convincing evidence.

This deference applies to a credibility determination that resolves conflicting

testimony, as Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998), instructs:

We must accept the state court’s credibility determination and

thus credit [the attorney’s] testimony over [the petitioner’s].

Coulter v. Herring, 60 F.3d 1499, 1503 (11th Cir. 1995) (applying

the statutory presumption of correctness under § 2254(d) to the

state court’s credibility determination), cert. denied, 516 U.S. 1122

(1996).

The deference is heightened when reviewing a credibility determination in a Section

2254 application. Consalvo v. Sec’y, Dep’t of Corr., 664 F. 3d 842, 845 (11th Cir. 2011)

(“Determining the credibility of witnesses is the province and function of the state

courts, not a federal court engaging in habeas review.”); Gore v. Sec’y, Dep’t of Corr.,

492 F.3d 1273, 1300 (11th Cir. 2007). Accord Kurtz v. Warden, Calhoun State Prison,

541 F. App’x 927, 929 (11th Cir. 2013) (“‘A certain amount of deference is always

given to a trial court’s credibility determinations,’ and a credibility determination in a

case on habeas review receives heightened deference.”) (quoting Gore).

The state court found that trial counsel chose, as a matter of trial strategy, to

not disclose to the prosecution Hanney’s version of events. Counsel’s reliance on a

particular defense is “a matter of strategy and is not ineffective unless the petitioner

can prove the chosen course, in itself, was unreasonable.” Chandler v. United States,

218 F.3d 1305, 1318 (11th Cir. 2000). “In order to show that an attorney’s strategic

choice was unreasonable, a petitioner must establish that no competent counsel

would have made such a choice.” Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th

Cir. 1998). The post-conviction court’s determination of no deficient performance is

a reasonable application of Strickland. Consequently, Ground Nine lacks merit.

Ground Eleven:

Hanney alleges that trial counsel rendered ineffective assistance by not moving

for a bench trial. After holding an evidentiary hearing on this claim, the post-

conviction court denied relief with the following findings and analysis (Respondent’s

Exhibit 37 at 17–18) (references to record omitted) (brackets original):

At the hearing, Counsel testified Defendant never asked for a

bench trial. Further, Counsel testified that in her professional

judgment, a bench trial would not have been appropriate in

Defendant’s case. In her testimony, Counsel stated that there is

“too much of a substantial constitutional issue” for a motion for

a bench trial to have been successful in this case. Counsel

further testified that in cases like Defendant’s, “[y]ou’d rather

have jurors,” and that she “definitely would not have gone

bench in front of Judge Battles” because the risk to Defendant

would have been very great.

The Court notes that holding a bench trial would require a

waiver of Defendant’s right to a trial by jury, the State to agree

to the waiver, and the Court would have to approve of the

waiver. The Court finds that Counsel’s decision to not move for

a bench trial was a strategic decision, which as Defendant’s

attorney, she was entitled to make. The Court finds Counsel’s

testimony that Defendant never asked for a bench trial credible,

and therefore this claim lacks merit. However, assuming

arguendo that Defendant did ask for a bench trial, Counsel’s

assessment that a bench trial was inappropriate for Defendant’s

case was reasonable. The Court finds that this relief was

unlikely to occur because constitutional rights were involved

and Counsel exercised her position as Defendant’s attorney to

determine that a jury trial was a better strategy to pursue.

Accordingly, the Court finds that this claim does not rise to the

level of ineffective assistance of counsel.

The state court determined that Hanney failed to show that counsel’s not

moving for a bench trial was deficient performance under Strickland based on trial

counsel’s credible testimony and her reasonable trial strategy that “a bench trial was

inappropriate for [Hanney]’s case.” Hanney fails to overcome the double deference

afforded to the post-conviction court’s reasonable application of Strickland’s

deference to trial counsel’s reasonable trial strategy decisions. Consequently,

Ground Eleven lacks merit.

B. IAC During Closing

Ground Twelve:

Hanney alleges that trial counsel rendered ineffective assistance by not

objecting during closing argument to comments he believes were prosecutorial

misconduct. The post-conviction court summarily denied relief with the following

findings and analysis (Respondent’s Exhibit 27 at 10–12) (references to record

omitted) (brackets original):

Defendant alleges that the State engaged in prosecutorial

misconduct during closing argument, and that counsel rendered

ineffective assistance of counsel by failing to object to this

prosecutorial misconduct during the State’s closing argument.

Specifically, Defendant alleges that the Assistant State Attorney

told the jury that to believe Defendant’s version of events, the

jury would have to believe all the State’s witnesses had lied.

Defendant alleges that the Assistant State Attorney improperly

shifted the burden to Defendant, stating that he had to prove

the State’s witnesses were lying, when she made the following

statements:

“For the defendant’s version of events to be true,

basically everybody that testified for the State of

Florida would have had to have lied. And

members of the jury, that just did not happen.”

“So the chaplain is in on it, too. The conspiracy

is so enormous that Defendant’s facing. It’s

everybody at the sheriff ’s office. It’s Audrey

Mabrey. It’s everybody at the Hillsborough

County Fire Rescue, the paramedics, the

investigators, the State Fire Marshall’s Office, the

guy with the dog from West Manatee, and the

neighbors, too, and now it’s the chaplain.”

“For this defendant to be found not guilty, you

have to believe that all of those people have come

in here with an agenda, because that’s the only

way you can believe his story. And that, ladies

and gentlemen, just is not true. The chaplain did

not come in here to reach the common goal of

convicting Christopher Hanney.”

“She’s just the next door neighbor. Why is she

going to join the conspiracy? She’s not.”

Defendant alleges that this deficient conduct has prejudiced

him from receiving a fair and impartial trial. Defendant alleges

that the comments made by the Assistant State Attorney

unfairly shifted the burden of proof from the State to

Defendant, and that the comments improperly bolstered the

State’s witnesses. Defendant alleges that had counsel objected

or moved for a mistrial, the outcome at trial would have been

different. Defendant further alleges that the Assistant State

Attorney’s comments “so infected the integrity of the trial as to

undermine any reasonable confidence in the outcome.” As

such, Defendant requests a new trial due to prosecutorial

misconduct and counsel’s failure to object to such prosecutorial

misconduct.

. . . .

To the extent that Defendant alleges that counsel failed to

properly object to such prosecutorial misconduct, after

reviewing the allegations, the court file, and the record, the

Court finds that Defendant’s allegations . . . are facially

sufficient. However, the Court finds that Defendant is not

entitled to relief as a matter of law. Under Florida law, “when it

is understood from the context of the argument that the charge

[of untruthfulness] is made with reference to the evidence, the

prosecutor is merely submitting to the jury a conclusion that he

or she is arguing can be drawn from the evidence.” Lugo v.

State, 845 So. 2d 74, 107 (Fla. 2003); see Craig v. State, 510 So.

2d 857, 865 (Fla. 1987) (finding no impropriety where counsel

referred to the defendant as a liar and questioned his veracity,

noting that “it is understood from the context that the charge is

made with reference to testimony given by the person thus

characterized, [so] the prosecutor is merely submitting to the

jury a conclusion that he is arguing can be drawn from the

evidence”). Upon a review of the trial transcript, it is clear to

the Court that each of the statements at issue are clearly

commenting on the evidence, including the jury’s duty to weigh

Defendant’s credibility as it would any other witness. As such,

the Court finds that the statements are fair and proper

inferences calling into question Defendant’s credibility based on

the evidence.

The post-conviction court determined that trial counsel’s not objecting to the

prosecutor’s statements was not deficient performance because the statements were

permissible comments on the evidence, which determination is consistent with

federal precedent. Closing argument is designed to “assist the jury in analyzing,

evaluating and applying the evidence.” United States v. Pearson, 746 F.2d 787, 796

(11th Cir. 1984). See United States v. Glover, 335 F. App’x 35, 37 (11th Cir. 2009)

(same). While a prosecutor may not go beyond the evidence presented to the jury,

the prosecutor is not limited to a bare recitation of the facts; he may comment on the

evidence and express the conclusions he contends the jury should draw from the

evidence. United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014) (“The purpose of

closing argument is to assist the jury in analyzing the evidence, and although a

prosecutor may not exceed the evidence presented at trial during her closing

argument, she may state conclusions drawn from the trial evidence.”).

Consequently, Ground Twelve lacks merit.

C. IAC Post-Trial

Ground Ten:

Hanney alleges that trial counsel rendered ineffective assistance by not filing a

motion for new trial –– despite Hanney’s having told counsel not to move for a new

trial –– so that the judge could consider the weight of the evidence. After holding an

evidentiary hearing on this claim, the post-conviction court denied relief with the

following findings and analysis (Respondent’s Exhibit 37 at 15–17) (references to

record omitted) (brackets original):

At the hearing, Counsel testified that in her experience, she has

never had a motion for new trial granted, and describes them as

“a format to guide the appellate attorney.” Counsel also

testified that Defendant told her “He didn’t want to put [the

victim] through the trial again,” indicating that he had no desire

to file any kind of appeal or motion for new trial. Based on her

previous experience in representing defendants, Counsel filed

an appeal despite Defendant’s apparent desire not to. Counsel

also testified that Defendant’s ability to be successful on appeal

was not compromised by her failure to file a motion for new

trial, and that there was no legal harm to Defendant by her

decision to not file a motion for new trial.

Defendant has failed to overcome his burden. Upon review of

Counsel’s credible testimony, the Court finds Counsel made a

reasonable strategic decision to not file a motion for a new trial

after Defendant told her he did not want her to file a motion for

new trial. The Court finds that even if Counsel had filed a

motion for a new trial, it would not have been granted. The

Court further finds that Counsel’s decision to not file a motion

for new trial was a strategic decision, which as Defendant’s

attorney, Counsel was entitled to make after Defendant

expressed to her that she should not file such a motion. As

such, Defendant has failed to prove Counsel acted deficiently or

that Counsel’s actions resulted in any prejudice.

The state court determined that Hanney failed to show that counsel’s not

moving for a new trial was deficient performance under Strickland based on trial

counsel’s credible testimony that Hanney told counsel not to move for a new trial.

The post-conviction court’s reasonable determination of no deficient performance is

consistent with federal precedent. See Chandler v. United States, 218 F.3d 1305, 1318

(11th Cir. 2000) (noting that “evidence of a petitioner’s statements and acts in

dealing with counsel is highly relevant to ineffective assistance claims”) (en banc).

D. Unexhausted Grounds of IAC Under Martinez

As stated earlier, Hanney admittedly failed to present to the state courts five

grounds of ineffective assistance of trial counsel. Each unexhausted ground is

procedurally defaulted and not entitled to a review on the merits unless Hanney can

meet the exception to the exhaustion requirement established by Martinez v.

Ryan, 566 U.S. 1 (2012). This exception applies only if (1) a state requires a prisoner

to raise a claim of ineffective assistance of trial counsel in an initial review collateral

proceeding, (2) the prisoner failed to properly raise the ineffective assistance of trial

counsel claim in his state initial review collateral proceeding, (3) the prisoner did not

have collateral counsel or his collateral counsel was ineffective, and (4) the failure to

excuse the procedural default would result in the loss of a “substantial” claim of

ineffective assistance of trial counsel, which claim is characterized as having “some

merit.” Martinez, 566 U.S. at 14. The first two requirements apply, and because he

was represented by counsel in the post-conviction proceeding (third requirement),

Hanney must show that post-conviction counsel was ineffective for not raising these

unexhausted claims of ineffective assistance of trial counsel, which showing requires

proof of both “deficient performance” and “prejudice” by post-conviction counsel.

Moreover, to show “deficient performance,” Hanney must show that no competent

counsel would have omitted these unexhausted claims of ineffective assistance of

trial counsel, as Hittson v. GDCP Warden, 759 F.3d at 1263 (italicized emphasis

original), teaches:

As we have explained, Strickland instructs courts to “indulge a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance” — that counsel

“rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.”

466 U.S. at 689–90, 104 S. Ct. at 2065–66. To overcome this

presumption, a petitioner must “establish that no competent

counsel would have taken the action that his counsel did take.”

Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000)

(en banc).

Thus, to show that his habeas counsel failed to provide the level

of representation required by Strickland, Hittson must show

more than the mere fact they failed to raise potentially

meritorious claims; he must show that no competent counsel, in

the exercise of reasonable professional judgment, would have

omitted those claims. Even assuming that the underlying

ineffective-assistance claims are meritorious . . . Hittson has not

established that his state habeas counsel were incompetent for

failing to raise them.

Consequently, in addition to showing that the claims of ineffective assistance

of trial counsel have “some merit,” Hanney must show that “no competent counsel”

would have omitted these grounds of ineffective assistance of trial counsel.

Grounds One through Four and Thirteen:

Hanney alleges three claims of ineffective assistance of trial counsel related to

the defense of justifiable used of force. Hanney faults trial counsel (1) for not

objecting to the justifiable-use-of-deadly-force instruction because the charge read to

the jury both (a) denied him the presumption of reasonable fear (Ground One) and

(b) authorized his use of deadly force only if he was not engaged in an unlawful

activity (Ground Three) and (2) for waiving a jury instruction on justifiable use of

non-deadly force (Ground Two). Also, Hanney alleges (1) that trial counsel

rendered ineffective assistance by not investigating, deposing, and calling as a

defense witness the victim’s ex-boyfriend (Ground Four), and (2) that the cumulative

effect of trial counsel’s errors violated his rights to due process (Ground Thirteen).

Hanney’s post-conviction counsel presented eight claims of ineffective

assistance of trial counsel, just not the five grounds Hanney now raises. An attorney

provides effective assistance by omitting weaker claims and advancing only the

stronger claims. Although in the context of an appellate counsel, the explanation in

Johnson v. Alabama, 256 F.3d at 1188, applies equally to a post-conviction counsel’s

decision on which claims to pursue:

It is difficult to win a Strickland claim on the grounds that

appellate counsel pressed the wrong legal arguments where the

arguments actually pursued were reasonable in the

circumstances. We have emphasized that even in a death

penalty case, counsel must be “highly selective about the issues

to be argued on appeal . . . .” United States v. Battle, 163 F.3d 1,

1 (11th Cir. 1998). The district court, having considered the

record and [appellate counsel]’s testimony during the state

postconviction proceeding, found that [appellate counsel] had

carefully considered many of the claims now raised in appeal,

but ultimately chose to pursue the claims he felt were most

likely to prevail and winnow out the arguments he thought

were less persuasive.

Accord Hittson v. GDCP Warden, 759 F.3d at 1263 (“‘Experienced advocates since

time beyond memory have emphasized the importance of winnowing out weaker

arguments on appeal and focusing on one central issue if possible, or at most on a

few key issues.’ Jones v. Barnes, 463 U.S. 745, 751–52, 103 S. Ct. 3308, 3313, 77 L.

Ed. 2d 987 (1983). ‘[A] per se rule that . . . the professional advocate, [is not] allowed

to decide what issues are to be pressed . . . seriously undermines the ability of counsel

to present the client’s case in accord with counsel’s professional evaluation.’ Id. at

751, 103 S. Ct. at 3313.”) (brackets and ellipsis original).

Regarding Grounds One through Four, a competent post-conviction counsel

would recognize the unlikelihood of success in challenging trial counsel’s strategic

decisions, particularly regarding jury instructions. United States v. Carter, 782 F.

App’x 818, 822–23 (11th Cir. 2019) (recognizing that counsel’s “handling of the jury

instructions was ‘sound trial strategy’”); see Nance v. Warden, Ga. Diag. Prison, 922

F.3d 1298, 1303 (11th Cir. 2019) (“[I]t is rarer still for merit to be found in a claim

that challenges a strategic decision of counsel.”).

Regarding Ground Thirteen, Hanney can prove cumulative error only by

showing two or more errors. “Without harmful errors, there can be no cumulative

effect compelling reversal.” United States v. Barshov, 733 F.2d 842, 852 (11th Cir.

1984). See Conklin v. Schofield, 366 F.3d 1191, 1210 (11th Cir. 2004) (“[T]he court

must consider the cumulative effect of [the alleged errors] and determine whether,

viewing the trial as a whole, [the applicant] received a fair trial as is [his] due under

our Constitution.”); Lucas v. Warden, Georgia Diagnostic & Classification Prison,

771 F.3d 785, 802 (11th Cir. 2014) (“We are equally unpersuaded that the

cumulative effect from Lucas’s Strickland and Brady claims entitles him to relief.”)

(citing Conklin). Because Hanney fails to meet Strickland’s deficient performance and

prejudice standard for any ground, Hanney shows no cumulative prejudicial effect.

See Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987) (“Mullen cites no

authority in support of his assertion, which, if adopted, would encourage habeas

petitioners to multiply claims endlessly in the hope that, by advancing a sufficient

number of claims, they could obtain relief even if none of these had any merit. We

receive enough meritless habeas claims as it is; we decline to adopt a rule that would

have the effect of soliciting more and has nothing else to recommend it. Twenty

times zero equals zero.”).

Consequently, Hanney fails to show that “no competent counsel” would have

omitted these grounds of ineffective assistance of trial counsel. Hanney’s Grounds

One through Four and Thirteen, reviewed under the dictates of Martinez, lack merit.

V. CONCLUSION

Hanney fails to meet his burden to show that the state court’s decision was

either an unreasonable application of controlling Supreme Court precedent or an

unreasonable determination of fact. As Burt v. Titlow, 571 U.S. 12, 19–20 (2013),

states:

Recognizing the duty and ability of our state-court colleagues to

adjudicate claims of constitutional wrong, AEDPA erects a

formidable barrier to federal habeas relief for prisoners whose

claims have been adjudicated in state court. AEDPA requires

“a state prisoner [to] show that the state court’s ruling on the

claim being presented in federal court was so lacking in

justification that there was an error . . . beyond any possibility

for fairminded disagreement.” Harrington v. Richter, 562 U.S.

[86, 103] (2011). “If this standard is difficult to meet” — and it

is — “that is because it was meant to be.” Id., at [102]. We will

not lightly conclude that a State’s criminal justice system has

experienced the “extreme malfunctio[n]” for which federal

habeas relief is the remedy. Id., at [103] (internal quotation

marks omitted).

Hanney’s application for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk must enter a judgment against Hanney and CLOSE this case.

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Hanney is not entitled to a certificate of appealability (“COA”). A prisoner

seeking a writ of habeas corpus has no entitlement to appeal a district court’s denial

of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a

COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” To merit a COA,

Hanney must show that reasonable jurists would find debatable both the merits of

the underlying claims and the procedural issues he seeks to raise. See 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d

926, 935 (11th Cir. 2001). Because he fails to show that reasonable jurists would

“find debatable” either the merits of the grounds or the procedural issues, Hanney is

entitled to neither a COA nor leave to appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis is

DENIED. Hanney must obtain permission from the circuit court to appeal in □□□□□

pauperis.

ORDERED in Tampa, Florida, on September 25, 2025.

ALTAD.W AA dyelen

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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