Elliott

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARK ELLIOTT,

Petitioner,

v. Case No. 8:23-cv-636-KKM-TGW

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________________

ORDER

Mark Elliott, a Florida prisoner, timely1 filed a Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254, challenging his state-court

convictions for second-degree witness intimidation and felony battery

1 A state prisoner has one year from the date his judgment becomes final to file

a § 2254 petition. See 28 U.S.C. § 2244(d)(1). This one-year limitation period is

tolled during the pendency of a properly filed state motion seeking collateral

relief. See id. § 2244(d)(2). The appellate court affirmed Elliott’s convictions on

June 23, 2020. (Doc. 14-1, Ex. F.) His judgment became final 90 days later, on

September 21, 2020, when the time to petition the Supreme Court of the

United States for a writ of certiorari expired. See Bond v. Moore, 309 F.3d 770,

774 (11th Cir. 2002). The clock did not start at that point, however, because on

September 9, 2020, Elliott had filed a motion to reduce sentence under Florida

Rule of Criminal Procedure 3.800(c). (Doc. 14-1, Ex. H.) That motion was

denied on October 27, 2020. (Id., Ex. I.) Because the denial of a Rule 3.800(c)

motion is unappealable, the clock started the next day. Frazier v. State, 766

So. 2d 459, 460 (Fla. 1st DCA 2000). After 227 days of untolled time, on June

12, 2021, Elliott moved to correct his sentence under Rule 3.800(a). (Doc. 14-1,

Ex. J.) The motion remained pending until August 18, 2022, when the time to

appeal its denial expired. (Id., Ex. M.) The clock did not restart at that point

because on June 23, 2022, Elliott had filed a petition alleging ineffective

assistance of appellate counsel. (Id., Ex. N.) The petition remained pending

until December 22, 2022, when the time to seek rehearing from its denial

expired. (Id., Ex. Q.) At that point, Elliott had 138 days—or until May 10,

2023—to seek federal habeas relief. He met the deadline, filing his petition on

March 22, 2023. (Doc. 1.) Therefore, the petition is timely.

(second offense). (Doc. 1.) Having considered the petition, (id.), the

response in opposition, (Doc. 13), and the reply, (Doc. 15), the petition is

denied. Because reasonable jurists would not disagree, a certificate of

appealability also is not warranted.

I. BACKGROUND

This case arises from a domestic violence incident between Elliott

and his girlfriend, Alexandra Torgerson. Around 3:00 p.m. on January 1,

2019, Elliott’s daughter arrived home to find Elliott standing over

Torgerson in the living room. (Doc. 14-1, Ex. S, at 34.) Torgerson was

“crying” on the floor. (Id.) Torgerson asked Elliott’s daughter to “call the

police” because she had been “trying to leave for hours” and Elliott

“wouldn’t let her.” (Id.) Elliott said that Torgerson “wasn’t allowed to

leave because she had taken money from him.” (Id.) Torgerson “pulled

[the] elastic band” of her leggings to “show she had nothing in there,” but

Elliott still “wouldn’t let her leave.” (Id. at 34–35.)

Torgerson’s cellphone rang. (Id. at 35.) Elliott “lunged at her,”

grabbed her arm, and said, “You’re not calling the cops.” (Id. at 35–36.)

He continued “trying to grab her so she couldn’t run out the garage door.”

(Id. at 36.) Elliott’s daughter separated them, hugged Torgerson, and

“whispered [to her] that [she] was going to call the cops and help her.”

(Id. at 37.) She left the house and called 911. (Id.)

Law enforcement arrived to find Elliott and Torgerson “hiding” in

a closet. (Id. at 55.) Elliott was “sweaty” and “agitated”; Torgerson was

“timid and afraid.” (Id. at 56.) After the two were separated, Torgerson

told an officer that “nothing happened.” (Id. at 57.) The officer noticed

“bruising” on both arms that “appeared to go from the forearm[s] into the

biceps.” (Id. at 59.) But Torgerson refused to allow the police to

photograph the bruises, saying that she “didn’t want to cooperate” with

the investigation. (Id. at 59, 66.) She also claimed that she “wasn’t a

victim of any crime.” (Id. at 73.)

Elliott was charged with second-degree witness intimidation and

felony battery (second offense). (Id., Ex. A, at 63–64.) Although he was

initially appointed counsel, Elliott elected to proceed pro se at trial. (Id.,

Ex. R; id., Ex. S., at 10–11.) He testified in his defense, claiming that the

incident was “nothing but a verbal argument.” (Id., Ex. S, at 123.) The

jury found him guilty as charged.2 (Id., Ex. A, at 88–90.) After

2 The jury separately found that Elliott had previously been convicted of

battery. (Doc. 14-1, Ex. A, at 90.)

determining that he qualified as a habitual felony offender, the trial court

sentenced Elliott to a total of 30 years’ imprisonment—the statutory

maximum for second-degree witness intimidation.3 (Id. at 342–45.) The

court explained that Elliott—a 21-time convicted felon—had spent

“almost his entire life . . . in the criminal justice system.” (Id. at 343.) It

noted the “sheer variety of [his] criminal activity,” which included “drugs,

violence, theft, even paper crimes [such as organized fraud].” (Id. at 344.)

In the court’s view, the only “option” was to “punish and isolate the

problem.” (Id. at 344-45.)

After the convictions were affirmed on direct appeal, Elliott

unsuccessfully sought various forms of postconviction relief in state

court. (Id., Exs. H–Q.) This federal habeas petition followed. (Doc. 1.)

II. STANDARD OF REVIEW UNDER SECTION 2254

The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) governs this proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354,

1364 (11th Cir. 2009). Habeas relief under the AEDPA can be granted

only if a petitioner is in custody “in violation of the Constitution or laws

3 Counsel represented Elliott at sentencing and on direct appeal. (Doc. 14-1,

Ex. A, at 323; Doc. 14-1, Ex. D.)

or treaties of the United States.” 28 U.S.C. § 2254(a). “The power of the

federal courts to grant a writ of habeas corpus setting aside a state

prisoner’s conviction on a claim that his conviction was obtained in

violation of the United States Constitution is strictly circumscribed.”

Green v. Sec’y, Dep’t of Corr., 28 F.4th 1089, 1093 (11th Cir. 2022).

Section 2254(d) provides that federal habeas relief cannot be

granted on a claim adjudicated on the merits in state court unless the

state court’s adjudication:

(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.

For purposes of § 2254(d)(1), the phrase “clearly established

Federal law” encompasses the holdings only of the United States

Supreme Court “as of the time of the relevant state-court decision.”

Williams v. Taylor, 529 U.S. 362, 412 (2000). This section “defines two

categories of cases in which a state prisoner may obtain federal habeas

relief with respect to a claim adjudicated on the merits in state court.” Id.

at 404. First, a decision is “contrary to” clearly established federal law “if

the state court arrives at a conclusion opposite to that reached by [the

Supreme] Court on a question of law or if the state court decides a case

differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413.

Second, a decision involves an “unreasonable application” of clearly

established federal law “if the state court identifies the correct governing

legal principle from [the Supreme] Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Id. The AEDPA

was meant “to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell

v. Cone, 535 U.S. 685, 693 (2002). Accordingly, “[t]he 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.” Id. at 694. As a result, to obtain relief under the

AEDPA, “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 also Lockyer v. Andrade, 538 U.S.

63, 75 (2003) (stating that “[t]he state court’s application of clearly

established federal law must be objectively unreasonable” for a federal

habeas petitioner to prevail and that the state court’s “clear error” is

insufficient).

When the last state court to decide a federal claim explains its

decision in a reasoned opinion, a federal habeas court reviews the specific

reasons as stated in the opinion and defers to those reasons if they are

reasonable. Wilson v. Sellers, 584 U.S. 122, 125 (2018). But the habeas

court is “not limited by the particular justifications the state court

provided for its reasons, and [it] may consider additional rationales that

support the state court’s determination.” Jennings v. Secretary, Fla. Dep’t

of Corr., 55 F.4th 1277, 1292 (11th Cir. 2022). When the relevant state-

court decision is not accompanied with reasons for the decision—such as

a summary affirmance without discussion—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 “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.” Id.

For purposes of § 2254(d)(2), “it is not enough to show that

‘reasonable minds reviewing the record might disagree about the finding

in question.’” Brown v. Davenport, 142 S. Ct. 1510, 1525 (2022)

(quotations omitted). “An unreasonable determination of the facts occurs

when the direction of the evidence, viewed cumulatively, was too

powerful to conclude anything but the petitioners factual claim.” Teasley

v. Warden, Macon State Prison, 978 F.3d 1349, 1355 (11th Cir. 2020)

(internal quotation marks and alterations omitted). A state court’s

findings of fact are presumed correct, and a petitioner can rebut the

presumption of correctness afforded to a state court’s factual findings

only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Even where a petitioner succeeds in rebutting the presumption, he

must show that the state court’s decision is “based on” the incorrect

factual determination. Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th

1025, 1035 (11th Cir. 2022). This is because a state court decision may

still be reasonable “even if some of the state court’s individual factual

findings were erroneous—so long as the decision, taken as a whole,

doesn’t constitute an ‘unreasonable determination of the facts’ and isn’t

‘based on’ any such determination.” Id. (quoting Hayes v. Sec’y, Fla. Dep’t

of Corr., 10 F.4th 1203, 1224–25 (11th Cir. 2021) (Newsom, J.,

concurring)).

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Elliott alleges ineffective assistance of counsel under the Sixth

Amendment. Under the well-known, two-part standard articulated in

Strickland v. Washington, 466 U.S. 668 (1984), to succeed, he must show

both deficient performance by his counsel and prejudice resulting from

those errors. Id. at 687.

The first part “requires showing that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. The lynchpin of this analysis is

whether counsel’s conduct “was reasonable considering all the

circumstances.” Id. at 688. A petitioner establishes deficient performance

if “the identified acts or omissions [of counsel] were outside the wide

range of professionally competent assistance.” Id. at 690. A court “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.” Id.

“[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable

professional judgment.” Id.

The second part requires showing that the deficient performance

prejudiced the defense. Id. at 687. “An 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.” Id.

at 691. To demonstrate prejudice, a petitioner 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.” Id. at 694.

“The question [on federal habeas review of an ineffective assistance

claim] ‘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) (quoting

Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Consequently, federal

petitioners rarely prevail on claims of ineffective assistance of counsel

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 (quotation and citations omitted).

IV. ANALYSIS

A. Ground One—Faretta Inquiry

Elliott argues that the trial court violated the Sixth Amendment by

conducting an “inadequate” Faretta4 inquiry. (Doc. 10 at 10.) According

to Elliott, the colloquy was deficient because the court never asked about

his “age, education, ability to read and write, or any mental or physical

conditions.” (Id. at 11.) The appellate court rejected this claim in an

unexplained decision. (Doc. 14-1, Ex. F.) Thus, Elliott must show that

“there was no reasonable basis for the state court to deny relief.” Richter,

562 U.S. at 98. He cannot do so.

“The Sixth Amendment safeguards to an accused who faces

incarceration the right to counsel at all critical stages of the criminal

process.” Iowa v. Tovar, 541 U.S. 77, 80–81 (2004). But a defendant also

“has a constitutional right to proceed without counsel when he

voluntarily and intelligently elects to do so.” Faretta, 422 U.S. at 807.

“Faretta provides that when a defendant requests to discharge counsel

4 Faretta v. California, 422 U.S. 806 (1975).

and to proceed pro se, a trial court should conduct an inquiry and make

the defendant ‘aware of the dangers and disadvantages of self-

representation, so that the record . . . establish[es] that [the defendant]

knows what he is doing and his choice is made with eyes open.’” Tuomi v.

Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 798 (11th Cir. 2020) (quoting

Faretta, 422 U.S. at 835). But “while a pretrial hearing is preferred, it is

merely ‘a means to the end,’ and ‘[t]he failure to hold a Faretta hearing

is not error as a matter of law.’” Id. (quoting United States v. Stanley, 739

F.3d 633, 645 (11th Cir. 2014)). “The core inquiry is whether the

defendant understood the choices before him and the potential dangers

of proceeding pro se.” Jones v. Walker, 540 F.3d 1277, 1293 (11th Cir.

2008). “If so, his waiver is valid.” Id.

A reasonable jurist could find no Faretta violation here. Three

months before trial, Elliott moved to “represent himself in the case at

bar.” (Doc. 14-1, Ex. A, at 42.) In his motion, he noted that he was a high

school graduate who could “read and write” and had “an adequate

understanding of law.” (Id. at 41–42.) The court held a Faretta hearing.

(Id., Ex. R.) It explained that it needed to “determine whether [Elliott

was] capable of representing [himself].” (Id. at 5.) It then recited the

disadvantages of proceeding pro se, noting that (1) “[h]e who represents

himself has a fool for a client,” (2) Elliott’s appointed counsel had “a lot

of experience and training,” (3) even lawyers sometimes “represent

themselves horribly” because they “get emotionally invested in [their]

case,” (4) the trial court would “hold [Elliott] to the standards that [it]

hold[s] the lawyers to and [he would not] get away with doing things that

people see on television and so forth,” and (5) the appellate court might

review his case and say, “Didn’t follow the rules? Oh, well. Represented

himself? That’s a chance he took.” (Id. at 7–11.) Elliott confirmed that

despite these pitfalls, he still wished to represent himself. (Id. at 12.) The

court found that Elliott was “competent to proceed [with] representing

himself.”5 (Id. at 12–13.)

On this record, a reasonable jurist could conclude that Elliott

“understood the choices before him and the potential dangers of

proceeding pro se.” Jones, 540 F.3d at 1293. Elliott is a high school

5 On the morning of trial, the court again confirmed that Elliott wished to

represent himself. (Doc. 14-1, Ex. S, at 9–11.) The court noted that after the

Faretta inquiry, the prosecution had filed a notice of intent to seek habitual

felony offender sentencing. (Id. at 9–10.) The court explained that Elliott now

“fac[ed] up to 30 years if he were to be convicted as charged.” (Id. at 10.) Elliott

said he still wished to proceed without counsel. (Id. at 10–11.)

graduate who, by his own account, could “read and write” and had “an

adequate understanding of law.” (Doc. 14-1, Ex. A, at 41–42.) He does not

claim to have any mental or physical ailments that affected his ability to

waive his right to counsel. (Doc. 10 at 10–14.) Nor does he say he lacked

an understanding of the charges or the potential penalties. (Id.) At the

Faretta hearing, the court repeatedly warned Elliott of “the dangers and

disadvantages of self-representation.” Faretta, 422 U.S. at 835. It even

told him that “[h]e who represents himself has a fool for a client.” (Doc.

14-1, Ex. R, at 8.) Yet he “remained steadfast in his desire to proceed pro

se.” Tuomi, 980 F.3d at 799. Because a reasonable jurist could find that

Elliott waived his right to counsel “with eyes open,” his Faretta claim

fails. Faretta, 422 U.S. at 835.

Elliott resists this conclusion, arguing that the court committed

“per se reversible error” by failing to inquire into his “age, education,

ability to read and write, or any mental or physical conditions.” (Doc. 10

at 5, 11.) Elliott is mistaken. The Supreme Court has not “prescribed any

formula or script to be read to a defendant who states that he elects to

proceed without counsel.” Tovar, 541 U.S. at 88; see also Hooks v. State,

286 So. 3d 163, 170 (Fla. 2019) (“[A] Faretta colloquy is not rendered

inadequate by the trial court’s failure to inquire as to the defendant’s age,

experience, and understanding of the rules of criminal procedure.”).

Indeed, a Faretta hearing is not even “required,” although it is

“preferred.” Stanley, 739 F.3d at 645. To prevail on his Faretta claim,

Elliott must “point to evidence in the record from which a trier of fact

could reasonably conclude [he] did not understand the dangers of self-

representation at the time he waived his right to counsel.” Jones, 540

F.3d at 1292. He has not done so. Thus, a reasonable jurist could conclude

that Elliott—a literate high school graduate who claimed to have an

adequate understanding of law—chose to represent himself “with eyes

open.” Faretta, 422 U.S. at 835.

B. Ground Two—Failure to Raise Alleged Speedy Trial

Violation

According to Elliott, appellate counsel should have argued that the

trial court erroneously denied his “request for discharge [due to] a speedy

trial violation.” (Doc. 10 at 15.) The appellate court rejected Elliott’s

ineffective assistance claim in an unelaborated decision. (Doc. 14-1, Ex.

Q.) As explained below, the request for discharge was meritless. Thus,

Elliott cannot show that “there was no reasonable basis for” the appellate

court’s silent rejection of his claim. Richter, 562 U.S. at 98.

Elliott was arrested on January 2, 2019. (Doc. 14-1, Ex. A, at 14.)

One month later, on February 7, he filed a pro se motion to proceed

without counsel, which also contained a “demand for speedy trial.” (Id.

at 41.) This meant the prosecution had 60 days to try him. Fla. R. Crim.

P. 3.191(b). If trial did not begin by then, Elliott needed to file “a separate

pleading entitled ‘Notice of Expiration of Speedy Trial Time.’” Fla. R.

Crim. P. 3.191(b)(4), (p)(2). This filing would “trigger[] the recapture

window”—“an additional ten-day period for the state to bring [Elliott] to

trial after the default speedy trial period expires.” State v. Nelson, 26 So.

3d 570, 574 (Fla. 2010). “Only after the . . . recapture period end[ed]

[would Elliott be] entitled to file a ‘motion for discharge’ requesting an

immediate discharge.” Wells v. McNeil, No. 08-61621-CIV, 2009 WL

2767659, at *11 (S.D. Fla. Aug. 25, 2009). Thus, if Elliott “failed to file a

notice of expiration of speedy trial,” he could not be “discharg[ed] on

speedy trial grounds.” State v. Pfeiffer, 872 So. 2d 313, 316 (Fla. 4th DCA

2004); see also 22 West’s Florida Practice Series § 14:13 (2025 ed.) (“Until

th[e] notice [of expiration of speedy trial] is filed and served, a defendant

is not entitled to rely upon the remedial provisions of [R]ule 3.191.”).

Elliott did not comply with this procedure. He demanded a speedy

trial on February 7, and the 60-day period expired on April 8. (Doc. 14-1,

Ex. A, at 41.) But he never filed a notice of expiration of speedy trial.

Instead, on April 14, Elliott submitted a “motion to discharge” based on

the alleged violation of his speedy trial rights. (Doc. 8-1 at 741.) A

“defendant who file[s] a motion for discharge rather than a notice of

expiration of speedy trial . . . [is] not entitled to dismissal of the criminal

charges pending against him.” Dabkowski v. State, 711 So. 2d 1219,

1219–20 (Fla. 5th DCA 1998). “[S]trict compliance with [this] rule is not

optional.” State v. Anderson, 14 So. 3d 1159, 1160 (Fla. 4th DCA 2009).

The notice “is designed to alert the clerk and the prosecution that the

case must immediately be brought to the attention of the court by placing

it on its calendar.” Dabkowski, 711 So. 2d at 1220; see also State v.

Demars, 848 So. 2d 436, 438 (Fla. 4th DCA 2003) (“[A] notice, not a

motion, is required to trigger the expiration of [the] recapture period.”).

Because Elliott “did not file a notice of expiration of speedy trial,” “he

[was] not entitled to discharge.” Sterling v. State, 728 So. 2d 340, 341

(Fla. 1st DCA 1999). Appellate counsel cannot be deemed “deficient for

failing to raise [this] meritless claim.” Freeman v. Att’y Gen., 536 F.3d

1225, 1233 (11th Cir. 2008).

To be sure, the trial court did not rely on this reasoning to deny

Elliott’s request for discharge. Instead, it found that his pro se demand

for speedy trial was a “nullity” because he was “represented at that time

by an attorney.” (Doc. 8-1 at 743–44.) Elliott says this reasoning was

mistaken because his demand for speedy trial “included the unequivocal

request to discharge counsel.” (Doc. 10 at 16.) But even if Elliott were

right about that, the appellate court likely would have affirmed on the

alternative basis set forth above. See Taylor v. State, 146 So. 3d 113, 116

n.3 (Fla. 5th DCA 2014) (“[I]f a trial court reaches the right result, but

for the wrong reasons, it will be upheld if there is any basis which would

support the judgment in the record.”). “Appellate counsel is not

ineffective for failing to raise claims reasonably considered to be without

merit.” United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000).

C. Grounds Three and Four—Failure to Raise Unpreserved

Errors

Elliott faults appellate counsel for failing to raise two issues that

were not preserved below. (Doc. 10 at 17–23.) First, the prosecution

allegedly “presented insufficient evidence to establish that Elliott had

been previously convicted of battery.” (Id. at 17.) Second, Elliott was

allegedly “entitled to an acquittal for the charge of witness intimidation”

because the prosecution failed to show that he “did anything to hinder,

delay, or prevent Torgerson from communicating to law enforcement

information relating to” a battery. (Id. at 19, 22.) According to Elliott,

appellate counsel provided ineffective assistance by failing to raise both

issues on appeal. (Id. at 18, 22.)

This claim is meritless. Elliott did not argue to the trial court that

the evidence was insufficient to establish his prior battery conviction.

(Doc. 14-1, Ex. S, at 165–71.) And while he did move for a judgment of

acquittal, (id. at 82–99, 126–27), he never presented the “specific”

argument he raises now—namely, the alleged absence of evidence that

he tried to stop Torgerson from reporting a battery.6 See F.B. v. State,

852 So. 2d 226, 230 n.2 (Fla. 2003) (“[A] motion or objection must be

specific to preserve a claim of insufficiency of the evidence for appellate

review.”); see also Stoddard v. State, 185 So. 3d 696, 697 (Fla. 2d DCA

6 Elliott’s pro se status did not excuse him from the “legal requirements

relating to the preservation of error.” Stueber v. Gallagher, 812 So. 2d 454, 457

(Fla. 5th DCA 2002) (“In Florida, pro se litigants are bound by the same rules

that apply to counsel.”).

2016) (defendant “failed to preserve” argument that “differ[ed]

substantially from the argument she raised before the trial court on her

motion [for judgment of acquittal]”).

Thus, the claim for ineffective assistance of appellate counsel turns

on whether the alleged errors were “fundamental” under Florida law. If

they were “not fundamental, then [Elliott’s] appellate counsel would have

been procedurally barred from raising [them] on appeal, and so he could

not have been ineffective for failing to raise [them].” Scott v. Sec’y, Dep’t

of Corr., 857 F. App’x 548, 551 (11th Cir. 2021); see also Matheny v. State,

15 So. 3d 658, 659 (Fla. 1st DCA 2009) (“Because the question of the

sufficiency of the evidence was not preserved via a timely, specific

challenge in the trial court, Appellant’s claim is not cognizable on direct

appeal unless he can demonstrate fundamental error.”).

The appellate court rejected Elliott’s ineffective assistance claim

without explanation. (Doc. 14-1, Ex. Q.) Thus, it “implicitly” determined

that any errors did not constitute fundamental error. See Pinkney v.

Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir. 2017) (holding that, “[b]ecause

the Florida Second District Court of Appeal denied [petitioner’s] state

habeas petition” without explanation, “the Florida court has already

determined, albeit implicitly, that the error was not fundamental error”).

“[T]he fundamental error question is an issue of state law, and state law

is what the state courts say it is.” Id. at 1299. Therefore, I “must defer to

the [state] court’s underlying determination[]” that no fundamental error

occurred. Id. at 1297–98. Because the alleged errors were not

fundamental, “appellate counsel would have been procedurally barred

from [challenging them] on appeal.” Scott, 857 F. App’x at 551. Counsel

“will not be held to have performed deficiently” where, as here, he “fail[s]

to perform a futile act, one that would not have gotten his client any

relief.” Pinkney, 876 F.3d at 1297.

D. Ground Five—Failure to Challenge Exclusion of

Torgerson’s Waiver of Prosecution

Elliott says that appellate counsel should have challenged the

exclusion of Torgerson’s “waiver of prosecution.” (Doc. 10 at 23.) As Elliott

points out, Torgerson told law enforcement that “nothing happened” and

declined to testify at trial. (Id.) He claims that she also “signed a waiver

of prosecution.” (Id.) At trial, Elliott tried to ask about the waiver, but

the court sustained the prosecution’s objection without explanation. (Doc.

14-1, Ex. S, at 78.) According to Elliott, this ruling was erroneous because

the waiver “would have demonstrated that Torgerson consistently

maintained that nothing happened and that Elliott had nothing to do

with her not cooperating with law enforcement or testifying at trial.”

(Doc. 10 at 25.) Elliott argues that, had counsel raised this issue on direct

appeal, he would have received “a new trial.” (Id.)

The appellate court rejected this claim without explanation. (Doc.

14-1, Ex. Q.) Once again, Elliott must show that “there was no reasonable

basis for” that decision. Richter, 562 U.S. at 98. He cannot do so. A

fairminded jurist could conclude that the “omitted claim” had no

“reasonable probability of success on appeal” because the exclusion of the

waiver was harmless. Joiner v. United States, 103 F.3d 961, 963 (11th

Cir. 1997); see also Boland v. Sec’y, Dep’t of Corr., 278 F. App’x 876, 879

(11th Cir. 2008) (prejudice inquiry “requires that we determine whether

the state court would have applied harmless error review”). And with no

reasonable probability of success on appeal, Elliott cannot show prejudice

from the omission of his claim.

A Florida appellate court “will not reverse where an error is

harmless.” Peret v. State, 301 So. 3d 437, 439 (Fla. 2d DCA 2020). The

test for harmlessness is whether there is a “reasonable possibility that

excluding [the] evidence . . . contributed to [the] conviction.” Mizell v.

State, 350 So. 3d 97, 102 (Fla. 1st DCA 2022). Here, a fairminded jurist

could find that any alleged error was harmless because Torgerson’s

waiver of prosecution was “cumulative in nature.” Prado v. State, 372 So.

3d 272, 275 (Fla. 4th DCA 2023); see also Andrews v. State, 82 So. 3d 979,

984 (Fla. 1st DCA 2011) (finding harmless error where challenged

testimony was “cumulative”).

The jury heard extensive evidence of Torgerson’s refusal to

cooperate with the prosecution. After Elliott and Torgerson were

separated, Torgerson told an officer that “nothing happened.” (Doc. 14-1,

Ex. S, at 57.) Moreover, she refused to allow the police to photograph the

bruises on her arms, explaining that she “didn’t want to cooperate” with

the investigation. (Id. at 59, 66.) She also told the police that she “wasn’t

a victim of any crime.” (Id. at 73.) And, as Elliott points out, Torgerson

did not testify at trial. (Doc. 10 at 23.) In closing, Elliott used this

evidence to argue that Torgerson “took the same viewpoint I did”—

“nothing happened.” (Doc. 14-1, Ex. S, at 137.) He highlighted her

“statement[]” that “[t]here was no crime committed at any time,” and he

“ma[de] a big deal of [her]” refusal to prosecute “because she’s the one

this allegedly happened to.” (Id. at 137, 140.)

In these circumstances, a fairminded jurist could conclude that any

error in excluding Torgerson’s waiver of prosecution “was harmless

because the [waiver] was cumulative of other evidence presented to the

jury.” Wallace v. State, 766 So. 2d 364, 372 (Fla. 3d DCA 2000). Thus, the

appellate court could reasonably have found that Elliott “was not

prejudiced when counsel failed to argue the [evidentiary] issue on direct

appeal.” Boland, 278 F. App’x at 880.

E. Ground Six—Failure to Challenge Witness Intimidation

Conviction

According to Elliott, appellate counsel should have filed a Rule

3.800(b) motion and argued that he was wrongly convicted of second-

degree witness intimidation.7 (Doc. 10 at 25–26.) Witness intimidation is

a second-degree felony if the defendant interferes with “the investigation

or prosecution of a third-degree felony.” Fla. Stat. § 914.22(2)(b). By

contrast, witness intimidation is a third-degree felony if the defendant

interferes with “the investigation or prosecution of a misdemeanor.” Id.

§ 914.22(2)(a). Elliott argues that he should have been convicted of third-

7 “If an appeal is pending, a defendant . . . may file in the trial court a motion

to correct a sentencing error [under Rule 3.800(b)]. The motion may be filed by

appellate counsel and must be served before the party’s first brief is served.”

Fla. R. Crim. P. 3.800(b)(2).

degree witness intimidation—rather than second-degree witness

intimidation—because the offense conduct “related to the investigation

of a misdemeanor battery.” (Doc. 10 at 27.) Elliott acknowledges that he

was ultimately convicted of felony battery (second offense)—a third-

degree felony. Fla. Stat. § 784.03(2). But in his view, the “prosecution’s

decision to eventually charge and prosecute [him] for a . . . a third-degree

felony[] does not change/impact the fact that [his] alleged intimidation

related to the investigation of a misdemeanor battery.” (Doc. 10 at 27.)

Elliott says that counsel should have raised this issue “by filing a motion

to correct illegal sentence” under Rule 3.800(b). (Id. at 28.)

The appellate court disagreed but did not explain its reasoning.

(Doc. 14-1, Ex. Q.) Once again, Elliott cannot prevail because the

appellate court had a “reasonable basis” to deny relief—namely, that the

challenge to his witness intimidation conviction was not cognizable under

Rule 3.800(b). Richter, 562 U.S. at 98.

Rule 3.800(b) is used to correct “technical errors” in a trial court’s

“sentencing orders”—for example, the imposition of a sentence that

“exceeds the statutory maximum,” the improper assessment of “costs,” or

the “fail[ure] to award credit for time served.” Acosta v. State, 399 So. 3d

1118, 1127 (Fla. 3d DCA 2024); Rosado v. State, 129 So. 3d 1104, 1108

(Fla. 5th DCA 2013). The rule “provide[s] defendants with a mechanism

for correcting technical sentencing errors promptly and thereby

preserv[ing] them for appellate review.” Baxter v. State, 127 So. 3d 726,

732 (Fla. 1st DCA 2013). But Rule 3.800(b) “is not the correct procedural

vehicle for attacking the merits of an underlying criminal conviction.”

Profit v. State, 382 So.3d 778, 780 (Fla. 1st DCA 2024); accord Echeverria

v. State, 949 So. 2d 331, 335 (Fla. 1st DCA 2007).

Elliott argues that he should have been convicted of third-degree

witness intimidation rather than second-degree witness intimidation.

(Doc. 10 at 27-28.) That is a “challeng[e] [to] his conviction.” Melton v.

State, 386 So. 3d 603, 607 (Fla. 1st DCA 2024). Thus, he “could not raise

[it] by motion under Rule 3.800(b).” Id. (defendant could not use Rule

3.800(b) to argue that he was wrongly convicted of “second-degree felony”

rather than “third-degree felony”). Indeed, Elliott “could have but failed

to object to the alleged error at the time of conviction.” Id. A reasonable

jurist could conclude that counsel was not deficient for failing to file a

meritless Rule 3.800(b) motion. See Sutherland v. Sec’y, Dep’t of Corr.,

No. 8:20-cv-3037-KKM-UAM, 2023 WL 7386032, at *6 (M.D. Fla. Nov. 8,

2023) (“As the claim that [petitioner] contends counsel should have filed

under Rule 3.800(b) would not have been cognizable, he does not show

that trial counsel was deficient for not raising the claim.”).

F. Ground Seven—Failure to Challenge Habitual Felony

Offender Sentence

According to Elliott, appellate counsel should have argued in a Rule

3.800(b) motion that his habitual felony offender (“HFO”) sentence

violated Apprendi v. United States, 530 U.S. 466 (2000).8 (Doc. 10 at 28–

29.) Without the HFO designation, Elliott faced a statutory maximum of

15 years’ imprisonment. Fla. Stat. §§ 775.082(3)(d), 914.22(2)(b). With

the HFO designation, the statutory maximum increased to 30 years’

imprisonment—the sentence Elliott ultimately received. Id.

§§ 775.082(3)(b), 775.084(4)(a)2, 914.22(2)(b). Apprendi held that,

“[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S.

at 490. Elliott argues that the trial court violated Apprendi by sentencing

him as an HFO without a jury finding that the enhancement was

8 “Apprendi claims are properly preserved by a Rule 3.800(b) motion.” Flournoy

v. State, 415 So. 3d 806, 808 (Fla. 2d DCA 2025).

necessary “for the protection of the public.” (Doc. 10 at 29.) He says that,

had counsel raised this issue on direct appeal, he would have received “a

new sentencing with his sentencing exposure capped at 15 years.” (Id.

at 30.)

The appellate court rejected Elliott’s claim without explanation.

(Doc. 14-1, Ex. Q.) Because a “reasonable basis” existed for that decision,

Elliott is not entitled to relief. Richter, 562 U.S. at 98.

The Fifth District Court of Appeal affirmed Elliott’s convictions in

June 2020. (Doc. 14-1, Ex. F.) Almost fifteen years earlier, the Fifth

District had rejected an Apprendi challenge to the HFO statute, ruling

that “the habitual offender statutes meet constitutional muster.” Roberts

v. State, 923 So. 2d 578, 582 (Fla. 5th DCA 2006) (citing Gudinas v. State,

879 So. 2d 616, 619 (Fla. 2004)). That precedent was binding at the time

of Elliott’s appeal. See O’Brien v. State, 478 So. 2d 497, 499 (Fla. 5th DCA

1985) (“[A] three-judge panel should not expressly overrule or recede

from a prior decision of this court on the same point of law.”). Thus,

counsel was not deficient for deciding to “forego a claim that was a loser

under the then-current state of the law.”9 Jones v. United States, 224 F.3d

1251, 1258 (11th Cir. 2000).

V. CERTIFICATE OF APPEALABILITY

A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition. 28 U.S.C.

§ 2253(c)(1). Instead, a district court or court of appeals must first issue

a certificate of appealability (COA). Id. “A [COA] may issue . . . only if the

applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To obtain a COA, Elliott must show that

reasonable jurists would find debatable both the merits of the underlying

claims and the procedural issues he seeks to raise. See Slack v. McDaniel,

529 U.S. 473, 484 (2000). Elliott has not made the requisite showing.

9 In April 2025, the Fourth District Court of Appeal stated that, in the light of

Erlinger v. United States, 602 U.S. 821 (2024), a trial court should “convene[]

a jury to designate [a defendant] as an HFO.” Jackson v. State, 410 So. 3d 4,

10 (Fla. 4th DCA 2025). The Fifth District has yet to address Erlinger’s impact

on HFO sentencing. See Scott v. State, 413 So. 3d 276, 278 (Fla. 5th DCA 2025)

(declining to “address the constitutionality of Florida’s HFO statute” post-

Erlinger). Regardless, Erlinger was decided four years after Elliott’s direct

appeal, and counsel cannot be deficient for “failing to predict what was not yet

a certain holding.” Black v. United States, 373 F.3d 1140, 1146 (11th Cir. 2004);

see also Geter v. United States, 534 F. App’x 831, 836 (11th Cir. 2013) (“It is

well-settled that an attorney’s failure to anticipate a change in the law will not

support a claim of ineffective assistance of appellate counsel.” (collecting

cases)).

Finally, because Elliott is not entitled to a COA, he is not entitled to

appeal in forma pauperis.

It is therefore ORDERED that Elliott’s Petition for Writ of Habeas

Corpus, (Doc. 1), is DENIED. The CLERK is directed to enter judgment

against Elliott and in Respondent’s favor and to CLOSE this case.

ORDERED in Tampa, Florida, on September 14, 2025.

pate Kinki Mizelle

United States District Judge

30