Cameron

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

FRANK ANTONIO CAMERON,

Petitioner,

v. Case No. 3:23-cv-240-MMH-SJH

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________________

ORDER

I. Status

Petitioner Frank Antonio Cameron, an inmate of the Florida penal

system, initiated this action on September 12, 2022,1 by filing a Petition for

Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1) in the Northern District

of Florida.2 The Honorable Hope T. Cannon, United States Magistrate Judge,

ordered the petition to be transferred to the Middle District of Florida. See Doc.

5. On May 16, 2023, this Court granted Cameron’s request for leave to amend

his Petition. See Docs. 11; 12. Cameron now proceeds on an Amended Petition

(Doc. 15; Amended Petition). In the Amended Petition, he challenges two 2019

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

state court (Duval County, Florida) judgments of conviction for second degree

murder and possession of a firearm by a convicted felon. He raises six grounds

for relief. See Amended Petition at 5–21. Respondent submitted a

memorandum in opposition to the Petition, see Response (Doc. 20; Response),

and also submitted exhibits, see Docs. 20-1 through 20-18. Cameron filed a

brief in reply. See Reply to Response (Doc. 21; Reply). This action is ripe for

review.

II. Relevant Procedural History

On February 28, 2018, the State of Florida charged Cameron by

amended information in State v. Cameron, No. 2016-CF-1114 (Fla. 4th Cir.

Ct.), with murder in the second degree (Count One) and possession of a firearm

by a convicted felon (Count Two). Doc. 20-2. Cameron proceeded to trial, and a

jury found Cameron guilty as charged in both counts on December 7, 2018. Doc.

20-7. On February 1, 2019, the trial court sentenced Cameron to a thirty-year

term of imprisonment with a twenty-five-year mandatory minimum as to

Count One and a concurrent, fifteen-year term of imprisonment with a three-

year mandatory minimum as to Count Two. Doc. 20-8.

On direct appeal, with the benefit of counsel, Cameron filed an initial

brief, arguing: (1) the evidence was insufficient as to the second degree murder

charge; (2) the trial court erred in denying the suppression of Cameron’s

“involuntary” incriminating statements; and (3) Cameron’s trial was

prejudiced after the testimony of a key State witness. Doc. 20-9 at 14–34. The

State filed an answer brief, Doc. 20-10, and Cameron replied, Doc. 20-11. The

First District Court of Appeal (First DCA) per curiam affirmed Cameron’s

convictions and sentences without a written opinion on March 27, 2020, and

issued the mandate on April 17, 2020. Doc. 20-12 at 1–3. Cameron filed a

motion for rehearing and/or clarification on April 20, 2020, and the First DCA

denied the motion on May 21, 2020. Id. at 4.

On July 9, 2021, Cameron filed a motion for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. Doc. 20-13. He then filed

an amended 3.850 Motion, alleging: (1) trial counsel rendered ineffective

assistance of counsel by failing to object to comments made by the prosecutor

during closing argument advising Cameron not to testify at trial; (2) the State’s

improper comments rose to the level of fundamental error; (3) trial counsel was

ineffective for advising Cameron against testifying; (4) trial counsel was

ineffective for failing to properly cross-examine the medical examiner; (5) trial

counsel was ineffective for failing to strike a juror who knew a family member

of the victim; (6) trial counsel was ineffective for failing to move for mistrial

based on outburst from victim’s family; and (7) the cumulative effect of

counsel’s errors deprived Cameron of his right to a fair trial (Rule 3.850

Motion; Doc. 20-14 at 4–21). On September 23, 2021, the postconviction court

summarily denied Cameron’s Rule 3.850 Motion. Doc. 20-15. The First DCA

per curiam affirmed the postconviction court’s denial without a written opinion

on June 14, 2022, Doc. 20-18 at 1–2, and issued the mandate on July 28, 2022,

id. at 3.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

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

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318–19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.

The pertinent facts of this case are fully developed in the record before the

Court. Because the Court can “adequately assess [Cameron’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

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

governs a state prisoner’s federal petition for habeas corpus. See Ledford v.

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

2016), abrogation recognized on other grounds by Smith v. Comm’r, Ala. Dep’t

of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023). “‘The purpose of AEDPA is to

ensure that federal habeas relief functions as a guard against extreme

malfunctions in the state criminal justice systems, and not as a means of error

correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)). As such,

federal habeas review of final state court decisions is “greatly circumscribed

and highly deferential.” Id. (internal quotation marks omitted) (quoting Hill v.

Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s

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

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

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 584 U.S. 122, 125 (2018). The presumption may be rebutted

by showing that the higher state court’s adjudication most likely relied on

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

persuasive alternative grounds that were briefed or argued to the higher court

or obvious in the record it reviewed. Id. at 125–26, 132.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless 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.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97–98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“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, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “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.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’” Titlow, 571 U.S. at --

-, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,

301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

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

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Titlow, 571 U.S.

at 19. “Federal courts may grant habeas relief only when a state court

blundered in a manner so ‘well understood and comprehended in existing law’

and ‘was so lacking in justification’ that ‘there is no possibility fairminded

jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter, 562 U.S. at

102–03). This standard is “meant to be” a “difficult” one to meet. Richter, 562

U.S. at 102. Thus, to the extent that the petitioner’s claims were adjudicated

on the merits in the state courts, they must be evaluated under 28 U.S.C. §

2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a

§ 2254 habeas action in federal court, a petitioner must exhaust all state court

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

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

present[]” every issue raised in his federal petition to the state’s highest court,

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

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

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

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

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

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

“‘“opportunity to pass upon and correct” alleged

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

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

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

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

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

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

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

L.Ed.2d 1 (1999).

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

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

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

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

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

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

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

Ct. 2497. A state court’s invocation of a procedural

rule to deny a prisoner’s claims precludes federal

review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate

to support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally defaulted

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 111 S. Ct. 2546.

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

excused under certain circumstances. Notwithstanding that a claim has been

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

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

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

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

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

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

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

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

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[5]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

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

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

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

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

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

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

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

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

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

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

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

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

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

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

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

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

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

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

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

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

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

performance falls below an objective standard of reasonableness and thereby

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

curiam) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then

Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “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, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

Claims of ineffective assistance of appellate counsel are governed by the

same standards applied to trial counsel under Strickland. See Tuomi v. Sec’y,

Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020); Philmore v. McNeil, 575

F.3d 1251, 1264 (11th Cir. 2009). The Eleventh Circuit has instructed:

In assessing an appellate attorney’s performance, we

are mindful that “the Sixth Amendment does not

require appellate advocates to raise every non-

frivolous issue.” Id. at 1130–31.6 Rather, an effective

attorney will weed out weaker arguments, even

though they may have merit. See id. at 1131. In order

to establish prejudice, we must first review the merits

of the omitted claim. See id. at 1132. Counsel’s

performance will be deemed prejudicial if we find that

“the neglected claim would have a reasonable

probability of success on appeal.” Id.

Philmore, 575 F.3d at 1264–65.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, 562 U.S. at ---, 131 S.

Ct. at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question is not whether a federal court

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable — a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, 562 U.S. at ---, 131 S. Ct. at 788.

6 Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991).

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference—this one to a state court’s decision—when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

Cameron alleges the trial judge erred and violated Cameron’s due

process rights by denying Cameron’s motion for judgment of acquittal.

Amended Petition at 5–7. Specifically, Cameron states the motion should have

been granted as to second degree murder because there was no “competent”

evidence of “ill will, hatred, malice, or evil intent” as required to find him guilty

of that crime. Id. at 6.

Respondent asserts Cameron failed to exhaust the federal nature of this

claim. Response at 30–33. Alternatively, Respondent contends the claim lacks

merit. Id. at 33–35. In his Reply, Cameron does not address Respondent’s

arguments, stating that he “submits [this claim] on the argument and

authority presented in his petition, as a reply to the respondent’s response . . .

would only be repetitive.” Reply at 1.

To properly exhaust a claim, a petitioner must “fairly present” his or her

federal claims to the state courts in a manner to alert them that the ruling

under review violated a federal constitutional right. Duncan, 513 U.S. at 365-

66; Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998). “It is not enough

that all the facts necessary to support the federal claim were before the state

courts or that a somewhat similar state-law claim was made.” Anderson v.

Harless, 459 U.S. 4, 5–6 (1982). The United States Supreme Court has stated,

“[a] litigant wishing to raise a federal issue can easily indicate the federal law

basis for his claim in a state-court petition or brief, for example, by citing in

conjunction with the claim the federal source of law on which he relies or a case

deciding such a claim on federal grounds, or by simply labeling the claim

‘federal.’” Baldwin v. Reese, 541 U.S. 27, 32 (2004). In reference to this

language, the Eleventh Circuit explained:

If read in a vacuum, this dicta might be thought to

create a low floor indeed for petitioners seeking to

establish exhaustion. However, we agree with the

district court that this language must be “applied with

common sense and in light of the purpose underlying

the exhaustion requirement [:] ‘to afford the state

courts a meaningful opportunity to consider

allegations of legal error without interference from the

federal judiciary.’” McNair [v. Campbell], 315 F. Supp.

2d [1179,] 1184 [(M.D. Ala. 2004)] (quoting Vasquez v.

Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88

L.Ed.2d 598 (1986)). This is consistent with settled law

established by the Supreme Court. See Picard, 404

U.S. at 275, 92 S.Ct. at 512 []. We therefore hold that

“‘[t]he exhaustion doctrine requires a habeas applicant

to do more than scatter some makeshift needles in the

haystack of the state record.’” Kelley [v. Sec’y, Dept. of

Corr.], 377 F.3d [1317,] 1345 [11th Cir. 2004] (quoting

Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.

1988)).

McNair v. Campbell, 416 F.3d 1291, 1302–03 (11th Cir. 2005).

Cameron, through the assistance of counsel, raised a substantially

similar claim on direct appeal. Doc. 20-9 at 14–19. The First DCA per curiam

affirmed his convictions and sentences without a written opinion. Doc. 20-12.

However, in arguing that there was insufficient evidence of second degree

murder, Cameron relied on Florida statutes and Florida case law without a

single mention of any constitutional doctrine or citation to a single federal case.

He thus failed to present the federal nature of the claim to the state court.

Accordingly, Ground One is unexhausted and procedurally defaulted, and

Cameron has failed to show cause for or prejudice to overcome this procedural

bar.

Even if the federal nature of this claim had been exhausted, it still fails.

To the extent that the First DCA decided this claim on the merits, the Court

addresses the claim in accordance with the deferential standard for federal

court review of state court adjudications. After a review of the record and the

applicable law, the Court concludes that the state court’s adjudication of this

claim was not contrary to clearly established federal law, did not involve an

unreasonable application of clearly established federal law, and was not based

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

presented in the state court proceedings. Therefore, Cameron is not entitled to

relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of this claim is

not entitled to deference, the claim fails on the merits. When reviewing an

insufficiency of the evidence claim in a habeas petition, a federal court must

determine “whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979). The court must assume that the jury resolved any

evidentiary conflicts in favor of the prosecution, and the court must defer to

that resolution. Id.

The Eleventh Circuit has explained:

In reviewing a challenge to the sufficiency of the

evidence this court must take the evidence in the light

most favorable to the government. Hamling v. United

States, 418 U.S. 87 (1974). Credibility choices and the

weighing of evidence must be resolved in favor of the

jury’s verdict. Glasser v. United States, 315 U.S. 60

(1942). In short, as long as a reasonable juror could

conclude that the evidence, viewed with all reasonable

inferences drawn in favor of the government,

established the defendant’s guilt beyond a reasonable

doubt, then the conviction will withstand a sufficiency

challenge. It is not necessary, however, that every

hypothesis of innocence be disproven as the jury “is

free to choose among reasonable constructions of the

evidence.” United States v. Vera, 701 F.2d 1349, 1357

(11th Cir. 1983) (quoting United States v. Bell, 678

F.2d 547, 549 (5th Cir., Unit B 1982) (en banc)

(discussing history of sufficiency of the evidence

standard in the Fifth Circuit), aff’d, 462 U.S. 356

(1983) . . . .

U.S. v. Funt, 896 F.2d 1288, 1291–92 (11th Cir. 1990) (citations cleaned up).

Thus, “a petitioner is entitled to relief under the Due Process Clause only if no

rational trier of fact could have found proof of his guilt beyond a reasonable

doubt.” Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 460–61 (11th Cir.

2015) (quotation marks omitted).

Under Florida law, second degree murder is defined as “[t]he unlawful

killing of a human being, when perpetrated by any act imminently dangerous

to another and evincing a depraved mind regardless of human life, although

without any premeditated design to effect the death of any particular

individual”. § 782.04(2), Fla. Stat. (2016).

An act is “inherently dangerous and evincing a

depraved mind regardless of human life,” if it is an act

or series of acts that:

1. a person of ordinary judgment would know is

reasonably certain to kill or do serious bodily injury to

another, and

2. is done from ill will, hatred, spite, or an evil intent, and

3. is of such a nature that the act itself indicates an

indifference to human life.

Fla. Std. Jury Instr. (Crim) 7.4 (2018).

At trial, a detective testified that Cameron admitted he had the gun “for

protection” and that the victim came over to help Cameron locate the gun’s

safety. Doc. 20-5 at 123, 124. The detective testified Cameron stated that the

gun was being passed back and forth between Cameron and the victim, but

that when Cameron took the gun back from the victim, the gun discharged.

Doc. 20-5 at 123–24. According to the detective, Cameron also made statements

saying things like, “I’m sorry I shot you.” Id. at 123. The State presented

testimony from the victim’s father that Cameron threatened to kill the victim

two days prior to the incident after a disagreement. Id. at 161–63, 166–67. The

victim’s father also testified Cameron had possessed the gun used at least a

year before the shooting, which discredits Cameron’s assertion that he needed

the victim to help him locate the safety on the gun. Id. at 189–91. There was

also evidence that bullets were found in Cameron’s trashcan close to where the

shooting occurred, which the trial court noted could be construed as

consciousness of guilt when denying Cameron’s motion for judgment of

acquittal. Id. at 78, 135, 293–94. The State also presented evidence that the

firearm in question was designed to discharge only with a full trigger pull and

that it would not fire simply by dropping it or even pulling the trigger half-

way. Id. at 244, 245–48. The medical examiner further testified that it

appeared the shot came from one to two feet away from the victim. Id. at 279–

80. This evidence was entirely sufficient for a rational trier of fact to conclude

that Cameron had acted with “ill will, hatred, spite, or an evil intent.”

Accordingly, Cameron is not entitled to federal habeas relief on Ground One.

B. Ground Two

Cameron alleges the trial court violated his due process rights to a fair

trial by denying his motion to suppress prejudicial, pre-Miranda7 statements.

Amended Petition at 8–9. In support, Cameron explains that officers arrived

on the scene and asked, “who shot [the victim]?” and “what happened?” to seek

incriminating responses and then placed him into a patrol car. Id. at 8.

Cameron states he then told the officer that “it was an accident and that he

never meant to shoot his friend.” Id.

In the Response, Respondent contends the federal nature of this claim is

also unexhausted, and alternatively the claim is without merit. Response at

35–40. Cameron fails to address the issue of exhaustion in his Reply, instead

focusing only on the merits. Reply at 1–2.

Cameron raised a substantially similar claim on direct appeal. Doc. 20-

9 at 20–28. The First DCA per curiam affirmed his convictions and sentences

7 Miranda v. Arizona, 384 U.S. 436 (1966).

without a written opinion. Doc. 20-12. However, in arguing the trial court erred

in denying his motion to suppress, Cameron never argued that the trial court’s

ruling denied him his rights under the due process clause of the Fourteenth

Amendment. Cameron specifically cited violations of Cameron’s right against

self-incrimination under the Fifth Amendment, right to counsel under the

Sixth and Fourteenth Amendment, and right to be free from unreasonable

seizures by law enforcement under the Fourth Amendment, see id. at 21, but

never once mentioned his right to a fair trial under the Due Process Clause.

Moreover, none of the federal cases cited by Cameron address the right to a

fair trial under the Due Process Clause. Accordingly, Ground Two is

unexhausted and procedurally defaulted. See Duncan v. Henry, 513 U.S. 364,

365 (1995) (“If a habeas petitioner wishes to claim that an evidentiary ruling

at a state court trial denied him the due process of law guaranteed by the

Fourteenth Amendment, he must say so, not only in federal court, but in state

court.”). Further, Cameron has failed to show cause for, or prejudice, to

overcome this procedural bar.

Nevertheless, assuming arguendo that the federal nature of the claim

was exhausted, Cameron’s claim still does not warrant relief. To the extent

that the First DCA decided this claim on the merits, the Court addresses the

claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law,

the Court concludes that the state court’s adjudication of this claim was not

contrary to clearly established federal law, did not involve an unreasonable

application of clearly established federal law, and was not based on an

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

the state court proceedings. Therefore, Cameron is not entitled to relief on the

basis of this claim.

Even if the appellate court’s adjudication of this claim is not entitled to

deference, the claim is still meritless. Trial counsel filed a motion to suppress

Cameron’s statements prior to trial, and the trial court held a hearing on the

motion. See Doc. 20-4. At the hearing, Officer Cochran and Detective Gray of

the Jacksonville Sheriff’s Office testified. See generally id. Officer Cochran

testified that he was dispatched in reference to a person being shot and, when

he arrived at the location, he found Cameron performing cardiopulmonary

resuscitation (CPR) on the victim who was laying on the ground bleeding. Id.

at 6, 8–9. Officer Cochran told Cameron to “get back” so that another officer

could perform CPR. Id. at 11–12. At that time, Officer Cochran asked Cameron

who shot the victim, to which Cameron replied that Cameron had shot the

victim by accident. Id. at 12. Officer Cochran then asked Cameron “what

happened,” and Cameron informed him the victim was trying to find the safety

on the gun, and when he could not find it, he handed the gun to Cameron at

which time Cameron “accidentally” shot the gun. Id. at 13. Cameron was then

escorted, without handcuffs, to the back of another officer’s patrol car. Id. at

13–14, 31–32.

Detective Gray testified that he responded to the shooting as a homicide

detective. Id. at 35. Detective Gray approached Cameron in the back of the

patrol car to get Cameron’s consent to search the residence. Id. at 37–38. While

he was explaining the form to Cameron, without Detective Gray asking any

questions, Cameron told him that the victim came over to his house to look at

the gun which Cameron had received from a friend for protection. Id. at 39–40.

Notably, both Officer Cochran and Detective Gray confirmed that Cameron

would not have been able to physically leave the patrol car once inside because

there are no handles on the inside of the backdoors. Id. at 32, 43.

The right to Miranda warnings only attaches when a custodial

interrogation begins. United States v. Acosta, 363 F.3d 1141, 1148 (11th Cir.

2004). “An interviewee’s ‘status as a suspect, and the coercive environment

that exists in virtually every interview by a police officer of a crime suspect,’

does not automatically create a custodial situation.” United States v.

Matcovich, 522 F. App’x 850, 851 (11th Cir. 2013)8 (citing United States v.

8 The Court does not rely on unpublished opinions as binding precedent;

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

particular point. See McNamara v. Gov’t Emps. Ins. Co., 30 F.4th 1055, 1060–61

(11th Cir. 2022); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished

Muegge, 225 F.3d 1267, 1270 (11th Cir. 2000)). Rather, a “defendant is in

custody for the purposes of Miranda when there has been a ‘formal arrest or

restraint on freedom of movement of the degree associated with a formal

arrest.’” United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006) (quoting

California v. Beheler, 463 U.S. 1121, 1125 (1983)). Whether a defendant is in

custody “depends on whether under the totality of the circumstances, a

reasonable man in his position would feel a restraint on his freedom of

movement to such extent that he would not feel free to leave.” United States v.

McDowell, 250 F.3d 1354, 1362 (11th Cir. 2001) (quotation marks and

alterations omitted). A reasonable man for purposes of this determination “is

defined [a]s a reasonable innocent person.” United States v. Moya, 74 F.3d

1117, 1119 (11th Cir. 1996) (citing Florida v. Bostick, 501 U.S. 429, 437–38

(1991)). “The test is objective: the actual, subjective beliefs of the defendant

and the interviewing officer on whether the defendant was free to leave are

irrelevant.” Moya, 74 F.3d at 1119. The term “interrogation”

under Miranda refers to express questioning as well “words or actions on the

part of police officers that they should have known were reasonably likely to

elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 300

opinions are not considered binding precedent, but they may be cited as persuasive

authority.”).

(1980). Accordingly, “[v]olunteered statements of any kind are not barred by

the Fifth Amendment and their admissibility is not affected by

[the Miranda decision].” Miranda, 384 U.S. at 478.

As to the statements made to Officer Cochran, Miranda warnings were

not required because at the time of his questions Cameron was not “in custody.”

A reasonable innocent person would not believe he was barred from leaving

when an officer arriving to a medical emergency asked him to “back up” so that

a professional could administer CPR and would expect the responding officer

to ask basic questions regarding what occurred to respond accordingly to that

emergency.

As to Detective Gray’s request to search, the request was not one that he

should have known would elicit an incriminating response and thus, would not

implicate Miranda. See Thompson v. United States, 826 F. App’x 721, 726–27

(11th Cir. 2020) (finding counsel did not act deficiently for failing to move to

suppress statements made after a request to search because “Miranda

warnings were not required prior to the agents seeking consent to search . . . .

This court has previously noted that consent to search is not a self-

incriminating statement.”) (citing United States v. Hidalgo, 7 F.3d 1566, 1568

(11th Cir. 1993)); see also Everett v. State, 893 So. 2d 1278, 1287–88 (Fla.

2004). Thus, even assuming Cameron was in custody for purposes of Miranda,

Cameron’s voluntary statements to Detective Gray, who was merely

requesting consent to search, do not implicate Miranda. Accordingly, Cameron

is not entitled to federal habeas relief on Ground Two.

C. Ground Three

Cameron alleges the trial court erred when it denied his motion for

mistrial. Amended Petition at 10–11. Cameron argues he was entitled to a

mistrial after the victim’s father testified at trial that Cameron was “known to

carry guns” and that “it’s the truth.” Id. According to Cameron, while it was

not “improper” for the witness to testify that Cameron was known to carry

guns, the witness was not permitted to make a “self-bolstering” statement. Id.

at 10. As a result of the statements and the trial court’s denial of the motion

for mistrial, Cameron argues he was deprived his rights to a fair trial and due

process of law under the Fifth, Sixth, and Fourteenth Amendments. Id. at 11.

Respondent again asserts that Cameron failed to exhaust the federal

nature of this claim. Response at 41. Cameron did not respond to this

argument. See Reply at 1. With the assistance of counsel, Cameron raised a

substantially similar claim on direct appeal. Doc. 20-9 at 29–34. The First DCA

per curiam affirmed his conviction without a written opinion. Doc. 20-12. While

in his Initial Brief on Appeal Cameron did argue he did not receive a fair trial

due to the admission of that evidence and the trial court’s denial of counsel’s

motion for mistrial, this is insufficient to exhaust the federal nature of his

claim. Doc. 20-9 at 29, 31, 34. As previously noted, Cameron must do more than

“scatter some makeshift needles in the haystack of the state record.” Kelley,

377 F.3d at 1345. Cameron again failed to cite a single constitutional provision,

federal law, or federal case when making his argument in the state court. Thus,

the claim is not exhausted. Moreover, Cameron has failed to show cause for, or

prejudice, to overcome this procedural bar.

Assuming his claim was exhausted by his reference to the denial of a fair

trial, Cameron still would not be entitled to relief. Insofar as the First DCA

decided this claim on the merits, the Court addresses the claim in accordance

with the deferential standard for federal court review of state court

adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts considering the evidence presented in the state court

proceedings. Therefore, Cameron is not entitled to relief on the basis of this

claim.

Even if the appellate court’s adjudication of this claim is not entitled to

deference, the claim is without merit. Under Florida law, a motion for mistrial

“should only be granted when an error is so prejudicial as to vitiate the entire

trial.” Pagan v. State, 830 So. 2d 792, 814 (Fla. 2002). “‘It has been long

established and continuously adhered to that the power to declare a mistrial

and discharge the jury should be exercised with great care and caution and

should be done only in cases of absolute necessity.’” Id. (quoting Thomas v.

State, 748 So. 2d 970, 980 (Fla. 1999)). Further, federal courts cannot grant

habeas corpus relief based on an evidentiary ruling unless the ruling affected

the fundamental fairness of the trial. Sims v. Singletary, 155 F.3d 1297, 1312

(11th Cir. 1998) (denying habeas corpus relief on a claim that a motion for

mistrial was wrongfully decided).

Here, the victim’s father testified that he took Cameron’s threat to his

son seriously because he was “from the streets and when you threaten

somebody, especially somebody that’s known to carry guns . . . . ” and “it’s the

truth.” Doc. 20-5 at 168. As a preliminary matter, the Court notes that the first

comment is ambiguous about whom the witness was saying was known to carry

guns. Nevertheless, even assuming it was generally understood that the

witness was referring to Cameron, the comments that Cameron was “known to

carry guns” and that it was the “truth” were not prejudicial enough to vitiate

the entire trial. Importantly, the comments were not a focus of the prosecution,

and the trial court offered a curative instruction, which defense counsel

declined. Doc. 20-5 at 170–71. Moreover, the comments were of little import

considering the evidence as described in Ground One, particularly since it was

undisputed Cameron possessed the firearm that day, possibly had it up to a

year prior, and was the individual who discharged it. Accordingly, Cameron is

not entitled to federal habeas relief on Ground Three.

D. Ground Four

Cameron asserts trial counsel was ineffective for failing to object to the

prosecutor’s improper closing statements. Amended Petition at 12–14.

Cameron raised this issue in Ground One of his Rule 3.850 Motion. Doc. 20-14

at 4–8. The postconviction court denied relief on the claim, stating:

In Ground One of this motion, Defendant argues

Defense Counsel should have objected to various

portions of the State’s closing argument.

The purpose of closing argument is to review the

evidence adduced at trial and to illuminate the

reasonable inferences the jury may draw from that

evidence. Bertolotti v. State, 476 So. 2d 130, 134 (Fla.

1985). Lawyers are afforded wide latitude during

closing argument. Breedlove v. State, 413 So. 2d 1, 8

(Fla. 1982). Counsel may “argue credibility of

witnesses or any other relevant issue so long as the

argument is based on the evidence.” Miller v. State,

926 So. 2d 1243, 1254-55 (Fla. 2006).

The Court finds nothing improper about the

State’s closing and rebuttal arguments. The

arguments fall comfortably within the wide latitude

that the law affords to counsel during closing

argument. Defense Counsel had no good faith legal

basis to raise any additional objections and was not

ineffective for failing to do so. See Hitchcock v. State,

991 So. 2d 337, 361 (Fla. 2008) (“Counsel cannot be

deemed ineffective for failing to make a meritless

objection.”). Moreover, there is no reasonable

probability that the result of Defendant’s trial turned

on the State’s closing argument or on Defense

Counsel’s failure to object to any statements therein.

For these reasons, the Court denies Ground One of

Defendant’s Motion.

Doc. 20-15 at 4–5 (internal record citations omitted). The First DCA per curiam

affirmed the postconviction court’s denial without a written opinion. Doc. 20-

18.

Again, Respondent asserts Cameron failed to exhaust the federal nature

of this claim by failing to “cite or allude to his Sixth Amendment right to

counsel or cite any case law whatsoever.” Response at 44–45. Nevertheless,

Respondent acknowledges that the Court could reach the merits of this claim

under Martinez v. Ryan, 566 U.S. 1 (2012). While Cameron did not cite the

case by name or citation, he does refer to the Strickland standard for ineffective

assistance of counsel claims. Those claims inherently implicate a defendant’s

right to counsel under the Sixth Amendment. See generally Strickland, 466

U.S. 668. Thus, the Court declines to find this claim unexhausted.

To the extent the state appellate court adjudicated this claim on the

merits, the state court’s decision is entitled to deference. After a review of the

record and the applicable law, the Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law

and did not involve an unreasonable application of clearly established federal

law. Nor was the state court’s adjudication based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings. Accordingly, Cameron is not entitled to relief on the basis of this

claim.

Further, even absent deference to the First DCA’s adjudication,

Cameron’s claim is meritless. Cameron first argues counsel should have

objected when the prosecutor said that Cameron had left out four words, “once

upon a time,” when Cameron told the detective that the victim came over to

help find the safety and that the gun went off as they were passing it back and

forth. Doc. 20-6 at 72. But this argument was not improper. The prosecutor’s

statement was meant to illustrate how farfetched Cameron’s version of the

shooting was in light of the evidence including the testimony that Cameron

had recently threatened the victim, that the type of gun used does not have an

external safety, that Cameron had had the weapon for a significant time prior

to the incident, and that the shot to the victim came from one to two feet away

from the victim. See id. at 76–78. The Court finds the prosecutor’s statement

was not improper, it was a reasonable inference that jurors could draw from

the evidence. See United States v. Adams, 339 F. App’x 883, 886 (11th Cir.

2008) (“[A] prosecutor may ‘assist the jury in analyzing, evaluating, and

applying the evidence’ and, therefore, may ‘urge[] the jury to draw inferences

and conclusions from the evidence produced at trial.’”) (quoting United States

v. Johns, 734 F.2d 657, 663 (11th Cir. 1984)). Trial counsel, therefore, was not

deficient for failing to make an objection that was without merit. See Denson

v. United States, 804 F. 3d 1339, 1342 (11th Cir. 2015) (“Failing to make a

meritless objection does not constitute deficient performance.”) (citing

Freeman v. Att’y Gen., 536 F.3d 1225, 1233 (11th Cir. 2008)).

Cameron also contends trial counsel should have objected to the

prosecutor’s assertion that Cameron did not perform CPR on the victim

immediately after the shooting. Doc. 20-6 at 72–73. But, the prosecutor based

this argument off the evidence in the record that the victim likely died

immediately and that bullets from the gun had been deposited into a nearby

trashcan prior to police arrival. Id. at 73. Accordingly, the Court again finds

the prosecutor’s comment was to urge the jury to draw an inference from the

evidence, and that counsel cannot be deemed deficient for failing to object to

such an argument. See Adams, 339 F. App’x at 886; Denson, 804 F.3d at 1342.

Lastly, Cameron contends trial counsel should have objected to the

prosecutor’s “improper bolstering” of the credibility of the victim’s father.

Specifically, Cameron states it was improper for the prosecutor to say the

victim’s father could have testified to facts more favorable to the State. Doc.

20-6 at 76–77. The Court does not find this statement qualifies as improper

bolstering. See United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009)

(“A prosecutor’s remarks are improper if they attempt to bolster the credibility

of a witness based on the government’s reputation or through alluding to

evidence not admitted at trial.”). Accordingly, trial counsel was not deficient

for failing to object. See Denson, 804 F.3d at 1342. Moreover, the Court does

not find the outcome of the proceeding would have been different if counsel had

objected to any of these statements. Cameron is thus not entitled to federal

habeas relief on this claim.9

E. Ground Five

Cameron contends trial counsel was ineffective for advising him against

testifying. Amended Petition at 15–17. Cameron states trial counsel

misadvised him that if testified, the State would be able to elicit testimony

regarding the nature and details of his prior convictions. Id. at 15. Cameron

argues this was not only a misstatement of the law because the State would

only have been able to elicit if, and how many times, he had previously been

convicted but also flawed because the prejudice of such testimony was lessened

by the parties’ stipulation that Cameron was a convicted felon. Id. at 15–16.

Cameron asserts that had he been appropriately advised, he would have

testified regarding his long friendship with the victim and explained his

9 The Court notes Cameron discussed other prosecutorial comments he believes

were improper. However, the Court does not address those comments as Cameron

admits trial counsel did object to the comments and does not argue counsel was

ineffective in handling those comments. Additionally, while Cameron referenced the

comments in Ground Two of his Rule 3.850 Motion, see Doc. 20-14 at 8–10, in that

claim he was alleging “fundamental error,” not ineffective assistance of counsel, and

the trial court denied the claim based on procedural grounds, see Doc. 20-15 at 5–6.

Thus, the same issue is not raised here and, to the extent Cameron may wish to raise

the issue of ineffective assistance of counsel as to those comments now, the claim

would be unexhausted and procedurally defaulted.

argument with the victim as well as the accidental discharge of the weapon.

Id. at 16–17.

Cameron raised a substantially similar issue in Ground Three of his Rule

3.850 Motion. Doc. 20-14 at 11–15. The Court notes that while the allegations

in his Amended Petition clearly assert counsel advised him that if he testified,

the State would be able to elicit details regarding his prior criminal history, in

his Rule 3.850 Motion, Cameron was less clear about whether he alleged

counsel advised him that his felony record would be elicited and was prejudicial

enough to advise against testifying, or if counsel had advised that the details

of his prior convictions would also be elicited.10 Id. at 11–12. The postconviction

court denied the claim as follows:

In Ground Three, Defendant argues Defense

Counsel was ineffective because she encouraged

Defendant not to testify at trial.

The trial court conducted an extensive sworn

colloquy with Defendant. In pertinent part that

colloquy reads:

THE COURT: Mr. Cameron, the decision has

been relayed to me or it has been relayed to me

that the decision has been made by you not to

testify in this case. Is that true, sir?

THE DEFENDANT: Yes, Your Honor.

10 The Eleventh Circuit has indicated that “habeas petitioners are permitted

to clarify the arguments presented to the state courts on federal collateral review

provided that those arguments remain unchanged in substance.” Kelley, 377 F.3d at

1344.

THE COURT: And is that your decision?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. You understand you have

the right to testify if you want?

THE DEFENDANT: Yes, sir.

THE COURT: And you have the right to decline

to testify under the Constitution and nobody can

force you to do that. You understand?

THE DEFENDANT: Yes, sir.

THE COURT: Now have you had a chance to

talk about the advantages and disadvantages of

testifying on your own behalf –

THE DEFENDANT: Yes, sir.

THE COURT: -- with you[r] client -- with your

attorneys?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And have they answered all your

questions on that issue to your satisfaction?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And do you need any further time

to talk about that issue with your attorneys?

THE DEFENDANT: No, Your Honor.

THE COURT: You’ve had an adequate amount

of time to talk about testifying with the

attorneys?

THE DEFENDANT: Yes, sir.

THE COURT: And do you believe it is in your

best interest not to testify in this case?

THE DEFENDANT: I trust my attorneys at this

point, Your Honor, and I’ll continue to do so.

THE COURT: Okay. But you understand that it

is your decision and yours alone?

THE DEFENDANT: Yes, sir.

THE COURT: We talked about that yesterday,

too.

THE DEFENDANT: Yes, sir, it is my decision.

THE COURT: While you trust your attorneys,

ultimately you have to make that decision.

THE DEFENDANT: Yes, sir. I made that

decision.

THE COURT: And taking everything into

consideration, do you believe it’s in your best

interest not to testify?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. And has anyone told you

that you will get a more favorable outcome if you

do not testify? In other words, has anyone told

you that you will get a more favorable outcome

in this case --

THE DEFENDANT: No. No, Your Honor.

THE COURT: -- if you do not take the stand?

THE DEFENDANT: No, Your Honor.

THE COURT: Have -- have your -- have either

of your attorneys guaranteed you a more

favorable outcome if you do not take the stand?

THE DEFENDANT: No, Your Honor. They

haven’t guaranteed me that, Your Honor.

THE COURT: Okay. You understand it’s -- it’s a

-- it’s a strategic decision --

THE DEFENDANT: Yes, sir.

THE COURT: -- that you make with the best

information that you have, but in the end, no one

can guarantee you a more favorable outcome?

You understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Has anyone threatened you,

forced you, or coerced you in any way to not

testify?

THE DEFENDANT: No, Your Honor.

THE COURT: Okay. Obviously, you didn’t take

any medication this morning?

THE DEFENDANT: I’m only medicated at

nights, Your Honor.

THE COURT: This is a prescribed medication?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You’re not under the influence of

any alcoholic beverage or drug right now?

THE DEFENDANT: No, Your Honor.

(. . .)

THE COURT: Okay. So outside of that there’s no

other witnesses that you feel should be

testifying?

THE DEFENDANT: No, Your Honor.

THE COURT: I’m sorry?

THE DEFENDANT: No, Your Honor.

THE COURT: And you’ve been able to

adequately discuss who should and shouldn’t

testify [--] you’ve had an adequate amount of

time to discuss who should and shouldn’t testify

with your attorneys[?]

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you feel like you need to talk

about that with your attorneys any further

about who should testify?

THE DEFENDANT: No, Your Honor.

THE COURT: Okay. And you – you’re satisfied

with just the two witnesses testifying on your

behalf and that’s it?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Is there – up to this point – also I

don’t know if there – is there going to be any

defense evidence entered?

[TRIAL COUNSEL]: No[,] sir. I – no, sir. There’s

not.

THE COURT: And no other items of evidence?

[TRIAL COUNSEL]: No, sir.

THE COURT: Okay. It’s my understanding as

well from your attorney as you’ve just heard her

state in open court that there will be no further

evidence, you know, documents or photos or

anything else entered into evidence during your

case in chief. Is that your understanding as well?

THE DEFENDANT: Yes, sir.

THE COURT: And you’re aware of any other

evidence that could be presented to – to the jury

that hasn’t already been presented?

THE DEFENDANT: No, Your Honor.

THE COURT: Okay. So you’re – you’re satisfied

with the two witnesses and no further evidence

being presented on your behalf during your case

in chief?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. Is there – at this point is

there anything you feel your attorneys should

have done in your case that they haven’t done?

THE DEFENDANT: No, Your Honor.

THE COURT: Is there anything you feel your

attorneys did not do up to this point that they

should have done?

THE DEFENDANT: No, Your Honor.

THE COURT: In other words, you’re – are you –

well, let me ask it this way: are you satisfied

with your attorneys’ representation in this case

up to this point?

THE DEFENDANT: Yes, Your Honor.

THE COURT: All right. I’m -- I’m satisfied as

well that the defendant has consulted with his

attorney on these issues and has had an

adequate amount of time to do this, was given

time yesterday. Court recessed early to allow

him more time to think about this and discuss

these issues about him testifying and other

witnesses testifying and I -- I believe that he has

made the decision not to testify freely and

voluntarily with the belief that it is in his best

interest.

Later, the trial court conducted a follow-up inquiry

with Defendant to confirm that his decision about testifying

had not changed:

THE COURT: Okay. So outside of that there’s no

other witnesses that you feel should be

testifying?

THE DEFENDANT: No, Your Honor.

The trial court’s extensive colloquy with

Defendant ensured that Defendant fully understood

his right to testify. Defendant swore the decision to not

testify was his alone. See Jones v. Barnes, 463 U.S.

745, 751 (1983) (“[T]he accused has the ultimate

authority to make certain fundamental decisions

regarding the case, as to whether to plead guilty,

waive a jury, testify in his or her own behalf, or take

an appeal . . . .”). Indeed, the trial court specifically

cautioned Defendant that while he should confer with

his attorneys, Defendant ultimately had to make the

decision about whether testifying would be in his best

interest. Furthermore, Defendant swore that no one

threatened or coerced him into making his decision

and that his attorneys did not guarantee that he would

receive a better trial outcome by not testifying. He also

swore that there were no additional witnesses he

wished to call or evidence that he wished to present.

Accepting the allegations contained in Ground

Three of Defendant’s motion requires discounting his

sworn assertions to the trial court. Defendant may not

obtain postconviction relief in that manner. See Kelley

v. State, 109 So. 3d 811, 812-13 (Fla. 1st DCA 2013)

(“A rule 3.850 motion cannot be used to go behind

representations the defendant made to the trial court,

and the court may summarily deny post-conviction

claims that are refuted by such representations.”);

Henry v. State, 920 So. 2d 1245, 1246 (Fla. 5th DCA

2006) (“Defendants are bound by the statements made

by them under oath . . . .”). Finally, the trial court’s

charge to the jury ensured that, contrary [to] what

Defendant alleges in his motion, the jurors did not

hold Defendant’s decision not to testify against him:

The Constitution requires the State to prove its

accusations against the defendant. It is not

necessary for the defendant to disprove

anything nor is the defendant required to prove

his innocence. It is up to the State – to the State

to prove the defendant’s guilty by the evidence.

The defendant exercised a fundamental right by

choosing not to be a witness in this case. You

must not view this as an admission of guilt or be

influenced in any way by his decision. No juror

should ever be concerned that the defendant did

or did not take the witness stand to give

testimony in this case.

See also R.J. Reynolds Tobacco Co. v. Thomas, 264 So.

3d 199, 202 (Fla. 4th DCA 2019) (“Moreover, it is a

well-established presumption that a jury would have

properly followed a trial court’s instructions.”).

Accordingly, the Court denies Ground Three of

Defendant’s motion.

Doc. 20-15 at 6–11 (internal record citations omitted). Cameron clarified in his

Initial Brief that the basis of this claim was that “the fact of and details” of his

felony record would be elicited. Doc. 20-16 at 12. The First DCA per curiam

affirmed the postconviction court’s denial without a written opinion. Doc. 20-

18.

Respondent makes the same argument that Cameron failed to exhaust

the federal nature of this claim by failing to reference the Sixth Amendment or

cite case law to that effect. However, for the reasons discussed in Ground Four,

the Court declines to find the claim unexhausted on that basis.

To the extent that the First DCA decided this claim on the merits, the

Court addresses the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts considering the evidence

presented in the state court proceedings. Therefore, Cameron is not entitled to

relief on the basis of this claim.

This claim would similarly fail on the merits even assuming the state

court’s adjudication was not entitled to deference. In Florida, if a defendant

testifies, the prosecutor may ask if he has been convicted of a felony, and if so,

how many. Lawhorne v. State, 500 So. 2d 519, 522 (Fla. 1986). However, the

prosecutor is prohibited from asking about the nature of the felonies unless the

defendant opens the door to that line of questioning. See Jones v. Sec’y Dept.

of Corr., 487 F. App’x 563, 568 (2012). Thus, only if counsel advised Cameron

that the nature of his prior felony convictions would be elicited if he testified,

would trial counsel’s advice been a misstatement of the law.

As a preliminary matter, the Court rejects Cameron’s argument that any

advice not to testify “lacked any logical basis” because he and the prosecution

had entered into a stipulation that he was a convicted felon. Amended Petition

at 16. The stipulation regarding Cameron’s prior criminal history only

informed the jury that Cameron “had been convicted of a felony and or was a

convicted felon on or before February 6, 2016.” Doc. 20-6 at 206. Importantly,

this stipulation was only read to the jury after the jury returned its verdict

finding Cameron guilty of second degree murder, see Doc. 20-6 at 203, and only

to be considered regarding the severed possession of a firearm charge.

Additionally, the stipulation did not specify the number of times Cameron had

been convicted of a felony. See id. at 206. Thus, there was still significant

potential prejudice if Cameron had testified because the jury would have

learned, prior to deciding the murder charge, both that Cameron was a

convicted felon and the number of times he had been convicted of a felony. And,

the trial judge instructed the jury that they could use that information in

assessing his credibility had he testified. See Doc. 20-6 at 169–70.

Assuming counsel did misadvise Cameron that the details of his felonies

would be introduced, the Court still finds no prejudice. Cameron states that if

he had testified, he would have testified regarding his long friendship with the

victim and that they had even been at a barbeque together the day after the

threat testified to by the victim’s father and prior to the shooting. But that

testimony would have been cumulative to the evidence presented. The victim’s

father testified that Cameron and the victim were friends, that the victim

would go to Cameron’s house at least two to three times a week, Cameron

would go to the victim’s home as well, and that Cameron would buy the victim

gifts. Doc. 20-5 at 158–60, 195, 206. The victim’s father also testified that the

friendship had been ongoing for five to seven years at the time of the incident.

Id. at 195–96. Moreover, Cameron presented two witnesses in his case, one of

whom testified regarding Cameron’s friendship with the victim and both of

whom testified that the victim had been at the barbeque with Cameron the day

before the shooting. Doc. 20-6 at 15–17, 21, 24, 25–29, 33–38.

Cameron also asserts he would have testified that he was not simply

looking for a safety but was focused on determining how to lower the gun’s

hammer without discharging the firearm and he would have clarified that the

actual trigger force was four-and-a-half pounds rather than the thirteen

pounds of pressure as the State argued. Cameron does not profess to being a

firearms expert (instead the case centers around him trying to determine basic

functionality of the gun) and would not have been able to testify regarding the

trigger force necessary for that firearm to discharge. Moreover, to testify that

he was doing more than merely trying to find the gun’s safety would risk the

jury finding his testimony inconsistent with his prior statements that the

reason the victim had come over was to help locate the safety.

In his Reply, Cameron also states he was prepared to testify that he “had

never threatened any harm to the victim, and certainly had not stated that he

would ‘kill’ his friend.” Reply at 4. However, Cameron never mentioned this

proposed testimony in Rule 3.850 Motion or Amended Petition. Thus, the Court

need not address that argument. See Herring v. Sec’y, Dep’t of Corr., 397 F.3d

1338, 1342 (11th Cir. 2005) (“As we repeatedly have admonished, ‘[a]rguments

raised for the first time in a reply brief are not properly before a reviewing

court.’” (citing United States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir. 1994))).

Considering the evidence presented by the State in this case, and the minimal

positive effect of his proposed testimony, the Court finds no reasonable

probability the result of the proceeding would have been different had

Cameron chosen to testify. Accordingly, Cameron is not entitled to federal

habeas relief on this claim.

F. Ground Six

Last, Cameron contends that he was denied a fair trial based on the

cumulative effect of counsel’s errors in failing to: (1) adequately cross-examine

the expert testimony of the medical examiner; (2) move to strike a juror who

worked with the victim’s “close relative”; and (3) move for a mistrial based on

the emotional outburst from the victim’s family in front of the jury. Amended

Petition at 18–21. Cameron raised a substantially similar cumulative error

argument in claim seven of his Rule 3.850 Motion. Doc. 20-14 at 21. The

postconviction court denied relief, stating in pertinent part:

In Ground Seven, Defendant makes a claim of

cumulative error. “Claims of cumulative error do not

warrant relief where each individual claim of error is

either meritless, procedurally barred, or does not meet

the Strickland standard for ineffective assistance of

counsel.” Schoenwetter v. State, 46 So. 3d 535, 562

(Fla. 2010) (internal quotation omitted). Because

Defendant’s claims do not meet Strickland’s standard

for ineffective assistance of counsel, Defendant’s claim

of cumulative error does not warrant relief.

Accordingly, the Court denies Ground Seven of

Defendant’s motion.

Doc. 20-15 at 16. The First DCA per curiam affirmed the denial of relief

without a written opinion. Doc. 20-18.

To the extent that the appellate court decided Cameron’s claim on the

merits, the Court will address the claim in accordance with the deferential

standard for federal court review of state court adjudications. After a review of

the record and the applicable law, the Court concludes that the state court’s

adjudication of the claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceedings. Thus, Cameron is not

entitled to relief on the basis of the claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Cameron’s claim does not have merit. Where all

individual claims are meritless, the claim of cumulative error is also without

merit. Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012); see

United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005) (“There being no

error in any of the district court’s rulings, the argument that cumulative trial

error requires that this Court reverse [the defendant’s] convictions is without

merit.”). The Court has reviewed the record and finds that the record does not

show, nor has Cameron identified, any error in the trial court’s determinations

regarding the lack of merit for each individual claim. Therefore, Cameron’s

assertion of cumulative error is likewise without merit. Accordingly, Cameron

is not entitled to federal habeas relief on Ground Six.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Cameron seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. The

Court should issue a certificate of appealability only if the petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, Cameron “must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274,

282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the

issues presented were ‘adequate to deserve encouragement to proceed

further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Amended Petition (Doc. 15) is DENIED, and this action is

DISMISSED WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Amended

Petition and dismissing this case with prejudice.

3. If Cameron appeals the denial of the Amended Petition, the Court

denies a certificate of appealability. Because the Court has determined that a

certificate of appealability is not warranted, the Clerk shall terminate from the

pending motions report any motion to proceed on appeal as a pauper that may

be filed in this case. Such termination shall serve as a denial of the motion.

4, The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 10th day of

February, 2026.

United States District Judge

50

JaxP-12

c: Frank Antonio Cameron, #916711

Counsel of Record