The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JULIO MALACHI GARCIA,
Petitioner,
v. CASE NO. 8:23-cv-95-JLB-NHA
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
/
O R D E R
Before the Court is the pro se 28 U.S.C. § 2254 petition for habeas
corpus relief filed by Julio Malachi Garcia (Petitioner), who is a prisoner of the
Florida Department of Corrections serving a twenty-year sentence with a ten-
year minimum mandatory for three counts of robbery with a firearm. (Doc. 1).
At the Court’s direction (Doc. 3), Respondent filed a response (Doc. 7), and
Petitioner filed a reply. (Doc. 13).
Upon careful consideration of the pleadings, the state court record, and
the entire file, the Court concludes that Petitioner is not entitled to federal
habeas corpus relief.1
1 Because the Court was able to resolve the petition on the record, an evidentiary
hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
I. BACKGROUND
On the evening of November 6, 2015, Petitioner and two others, each
armed with a firearm, robbed three people at the residence of one of the
victims. (Doc. 7-2 at 1036–41). A jury convicted Petitioner of three counts
of robbery with a firearm (Doc. 7-2 at 978–80), and the trial court sentenced
Petitioner to 20 years in prison with a ten-year minimum mandatory. (Doc.
7-2 at 1017–19. Florida’s Second District Court of Appeal (Second DCA)
affirmed the conviction and sentence without a written opinion. (Doc. 7-2 at
1105).
Petitioner filed a motion for postconviction relief under Rule 3.850,
Florida Rules of Criminal Procedure (Rule 3.850 Motion) (Doc. 7-2 at 1109–27),
which, after an evidentiary hearing, the post-conviction court denied. (Doc. 7-2
at 1421–42). The Second DCA affirmed without a written opinion. (Doc. 7-2 at
1517).
Under the “mail-box rule,” Houston v. Lack, 487 U.S. 266, 275 (1988),
Petitioner filed his pro se petition for habeas corpus relief on January 11, 2023.
(Doc. 1). Respondent admits that the petition is timely (Doc. 7 at 2) but argues
both that one ground alleges no federal claim and that two grounds are
unexhausted, which precludes federal review of the merits of those two
grounds.
A. Ground Three is Denied Because Habeas Review is Limited to
a Federal Claim
In Ground Three, Petitioner alleges that the trial court erred in
excluding his earlier statement about prior drug sales by state witnesses as an
explanation for why he was at the residence of one of the victims.
Section 2254(a) limits federal habeas corpus review to only an allegation
“that he is in custody in violation of the Constitution or laws or treaties of the
United States.” As a general principle, an alleged violation of state law fails to
assert a constitutional issue, as Wilson v. Corcoran, 562 U.S. 1, 5 (2010),
explains:
But it is only noncompliance with federal law that renders a
State’s criminal judgment susceptible to collateral attack in the
federal courts. The habeas statute unambiguously provides that a
federal court may issue the writ to a state prisoner “only on the
ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(a). And
we have repeatedly held that “‘federal habeas corpus relief does
not lie for errors of state law.’” Estelle v. McGuire, 502 U.S. 62, 67,
112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (quoting Lewis v. Jeffers,
497 U.S. 764, 780, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990)). “[I]t
is not the province of a federal habeas court to reexamine state-
court determinations on state-law questions.” 502 U.S., at 67–68,
112 S. Ct. 475.
In excluding Petitioner’s earlier statement about the state witnesses’
prior drug sales as an explanation for why he was at the home of one of the
victims, the trial court ruled as follows:
I will not allow any prior bad acts or discussions about this home,
the alleged victims, the defendant, or any witness for that matter,
about prior drug activity. I’ll find that that is improper evidence
and not admissible in the trial related to a robbery on a specific
date and time. My inclination right now is that as it goes to the
Defense that it may I think in fact be relevant to explain why
perhaps Mr. Garcia was there for a reason other than as the
Defense states committing a robbery.
(Doc. 7-2 at 307). At trial and on direct appeal –– as well as in his federal
petition –– Petitioner argued for admissibility of the evidence under the “rule
of completeness” under state law. Notably, Petitioner never asserted –– and
still does not assert –– that the exclusion of the evidence violated a federal
right.
As a general principle, an alleged violation of state law fails to assert a
constitutional issue because the admissibility of evidence in state court is
largely a matter for the state to decide without federal intervention. See
Marshall v. Lonberger, 459 U.S. 422, 438, n.6 (1983) (“[T]he Due Process
Clause does not permit the federal courts to engage in a finely tuned review of
the wisdom of state evidentiary rules.”); Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (“We have repeatedly held that a state court’s interpretation of state
law . . . binds a federal court sitting in habeas corpus.”); Pinkney v. Sec’y, Dep’t
of Corr., 876 F.3d 1290, 1299 (11th Cir. 2017) (“[I]t is not a federal court’s role
to examine the propriety of a state court’s determination of state law.”);
McCullough v. Singletary, 967 F.2d 530, 535–36 (11th Cir. 1992) (“A state’s
interpretation of its own laws or rules provides no basis for federal habeas
corpus relief, since no question of a constitutional nature is involved.”).
Ground Three fails to assert a federal claim that is entitled to a review on the
merits.
B. Grounds 2 and 4 are Denied as Unexhausted and Procedurally
Defaulted
The Antiterrorism Effective Death Penalty Act (“AEDPA”) precludes
federal courts, absent exceptional circumstances, from granting habeas relief
unless a petitioner has exhausted all means of available relief under state law.
28 U.S.C. § 2254(b)(1). Exhaustion of state remedies requires that the state
prisoner “fairly presen[t] federal claims to the state courts in order to give the
State the opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights[.]” Duncan v. Henry, 513 U.S. 364, 365 (1995). “To
provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly
present’ his claim in each appropriate state court (including a state supreme
court with powers of discretionary review), thereby alerting that court to the
federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing
Duncan, 513 U.S. at 365–66). The petitioner must apprise the state court of
the federal constitutional issue, not just the underlying facts of the claim or a
similar state law claim. Anderson v. Harless, 459 U.S. 4, 6 (1982) (“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.”).
Under the similar doctrine of procedural default, “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.” Martinez v. Ryan, 566 U.S.1, 9 (2012).
A petitioner can avoid the application of the exhaustion or procedural
default rules by establishing objective cause for failing to properly raise the
claim in state court and actual prejudice from the alleged constitutional
violation. Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170, 1179–80 (11th Cir.
2010). To show cause, a petitioner “must demonstrate that some objective
factor external to the defense impeded the effort to raise the claim properly in
state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To show
“prejudice,” the applicant must show “not merely that the errors at his trial
created the possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (emphasis
in original) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). See
Crawford v. Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002) (recognizing that a
petitioner must demonstrate a reasonable probability that the outcome of the
proceeding would have differed).
A second exception, known as “fundamental miscarriage of justice,”
only occurs in an extraordinary case, that is, a circumstance in which a
“constitutional violation has probably resulted in the conviction of one who is
actually innocent[.]” Murray v. Carrier, 477 U.S. 478, 479–80 (1986). To meet
the “fundamental miscarriage of justice” exception, Petitioner must show
constitutional error coupled with “new reliable evidence — whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence — that was not presented at trial.” Schlup v. Delo, 513 U.S.
298, 324 (1995). This exception is not available unless “petitioner shows, as a
factual matter, that he did not commit the crime of conviction.” Ward v. Cain,
53 F.3d 106, 108 (5th Cir. 1995) (denying a certificate of probable cause).
Respondent correctly argues both that Grounds Two and Four are
unexhausted and that Petitioner meets neither the “cause and prejudice”
exception nor the “fundamental miscarriage of justice” exception to qualify for
review on the merits.
1. Ground Two
Petitioner alleges that trial counsel rendered ineffective assistance
during cross-examination by not impeaching Timothy McCurdy (one of the
victims) with his prior inconsistent identification of Petitioner as one of the
robbers. The postconviction court denied this claim as follows:
Defendant alleges three instances of counsel’s improper
impeachment with prior inconsistent statements.[2] First,
Defendant alleges that during the initial investigation, McCurdy
stated to law enforcement that he didn’t know how many
assailants there were or what they looked like because he kept his
head down the whole time. However, on direct examination he
identified defendant as one of the robbers. Defendant alleges
counsel failed to properly impeach McCurdy with his prior
inconsistent statement to law enforcement. . . .
Defendant alleges that the proper method of impeachment with
prior inconsistent statements would have damaged McCurdy’s
credibility to such a degree that Defendant would have been
acquitted.
“A defendant is ‘not entitled to perfect or error-free counsel, only to
reasonably effective counsel.’” Yarbrough v. State, 871 So. 2d 1026
(Fla. 1st DCA 2004 (quoting Waterhouse v. State, 522 So. 2d 341,
343 (Fla. 1988)). After careful review of defense counsel’s cross-
examination of McCurdy, the Court finds counsel did not perform
deficiently with regard to impeachment with prior inconsistent
statements. Although counsel’s impeachment was interrupted by
the prosecutor’s objections to the form of the questions, the
information comprising the prior inconsistent statements was
ultimately presented to the jury. In his closing statement, defense
counsel highlighted each of McCurdy’s prior inconsistent
statements and argued McCurdy was trying to mislead the jury.
On this record, defense counsel adequately impeached McCurdy
with his prior inconsistent statements. Ground 1 is denied.
(Doc. 7-2 at 1131–32).
Although fairly presented to the postconviction court, Respondent
correctly argues that Petitioner did not fairly present this issue on appeal. In
2 In the postconviction proceedings Petitioner alleged three instances of counsel’s
alleged ineffectiveness based on improper impeachment of McCurdy, but in this federal
action Petitioner challenges only the first instance of alleged ineffectiveness based on
improper impeachment of McCurdy.
his Rule 3.850 motion, Petitioner asserted nine grounds of ineffective
assistance of counsel. In his initial appellate brief, Petitioner argued that the
postconviction court erred in denying relief on four of the grounds,3 but in a
total of four paragraphs, the brief simply mentions four additional grounds
and never mentions the remaining ground. 4 Of significance here is that one of
the grounds presented in a cursory fashion in the appellate brief –– identified
as Ground One in the Rule 3.850 motion –– asserts the same claim of
ineffective assistance of counsel (not properly impeaching McCurdy with his
prior inconsistent identification of Petitioner as one of the robbers) that is
alleged in Ground Two in the federal petition. In the answer brief on the
postconviction appeal, Respondent argued that, under state procedure, the
cursory reference to the issue failed to properly present the issue for appellate
review. (Doc. 7-2 at 1507–08). The Second DCA affirmed without a written
opinion. (Doc. 7-2 at 1517).
First, Respondent argues that Ground Two remains unexhausted and is
procedurally barred because Petitioner did not “fairly present” this ground in
3 Ground Two (Doc. 7-2 at 1469–70); Ground Four (Doc. 7-2 at 1471–77), which is the
issue presented in Ground One of the federal petition; Ground Eight (Doc. 7-2 at 1477–79),
which is the issue presented in Ground Four of the federal petition; and Ground Three (Doc.
7-2 at 1481–82).
4 Ground One (Doc. 7-2 at 1479); Grounds Five and Six (Doc. 7-2 at 1479–80); and
Ground Nine (Doc. 7-2 at 1481). Ground Seven in the Rule 3.850 motion was omitted from
the appellate brief.
the postconviction appellate brief. The Court agrees. See Duest v. Dugger, 555
So. 2d 849, 851–52 (Fla. 1990) (stating that merely referring to an issue
“without further elucidation” fails to preserve the issue). Second, Respondent
argues that “[t]his Court ‘may not assume that had the state court issued an
opinion, it would have ignored its own procedural rules and reached the
merits” of this claim. Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993).”
(Doc. 7 at 33–34) Respondent is correct. As Zeigler v. Crosby, 345 F.3d 1300,
1310 (11th Cir. 2003), explains, state courts are presumed to apply their state
procedural rules:
When a state court issues a summary denial on a claim that is
procedurally barred and nothing in the disposition discusses the
merits of the federal claim, we “cannot assume that had the [state
court] explained its reasoning, it would have reached the merits of
[the] claim.” Kight v. Singletary, 50 F.3d 1539, 1545 (11th Cir.
1995) (citing Tower v. Phillips, 7 F.3d 206, 209 (11th Cir. 1993)),
see also, Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546,
2557, 115 L. Ed. 2d 640 (1991).
Because Respondent argued procedural default in its response to ground
one in the postconviction appeal the state argued procedural default –– an
argument not explicitly rejected by the Second DCA –– the state court is
presumed to have applied the state’s procedural default rules. Zeigler, 345
F.3d at 1310 (“We cannot conclude that the Florida Supreme Court’s summary
denial of Zeigler’s 1994 habeas petition was a decision on the merits. In
responding to Zeigler’s 1994 habeas petition, the State’s only argument in
response to Zeigler’s claims was that the claims were procedurally defaulted.”).
See Bennett v. Fortner, 863 F.2d 804, 807 (11th Cir. 1989) (“[W]hen a
procedural default is asserted on appeal and the state appellate court has not
clearly indicated that in affirming it is reaching the merits, the state court’s
opinion is based on the procedural default.”); Nichols v. Wainwright, 783 F.2d
1540, 1542 (11th Cir. 1986) (“[T]his court may presume, in the absence of any
evidence to the contrary, tha[t] an established default rule which was briefed
to a state court was applied by that court when it affirmed a conviction
without opinion.”). Consequently, Ground Two in this federal petition is
unexhausted and procedurally defaulted.
As discussed, to overcome this procedural default and to warrant a
review on the merits Petitioner must meet either the “cause and prejudice”
exception or the manifest injustice” exception to the exhaustion requirement.
In his reply to the response in this federal action, Petitioner asserts
entitlement to the “cause and prejudice” exception (but not the “manifest
injustice” exception), contending that appointed appellate counsel “caused” the
procedural default by omitting this issue notwithstanding Petitioner’s request
to include the issue. (Doc. 13 at 13–15).
To the extent the basis for “cause” constitutes an independent
constitutional claim –– such as ineffective assistance of counsel –– Petitioner
must have exhausted what he claims excuses his procedural default. “A
showing of ineffective assistance of appellate counsel in failing to raise a claim
on direct appeal can constitute ‘cause’ so long as the ineffective assistance
‘occur[red] during a stage when a petitioner had a constitutional right to
counsel’ and the ineffective-assistance claim itself is ‘both exhausted and not
procedurally defaulted.’” Sealey v. Warden, Georgia Diagnostic Prison, 954
F.3d 1338, 1365 (11th Cir. 2020) (internal citations omitted). See also
Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (explaining that a federal
habeas court is barred from considering a procedurally defaulted “ineffective-
assistance-of-counsel claim asserted as cause for the procedural default of
another claim” unless the petitioner establishes “the cause-and-prejudice
standard with respect to” the ineffective assistance claim); Murray v. Carrier,
477 U.S. at 488–89 (recognizing that, if ineffective assistance of counsel is
alleged as cause to excuse a procedural default, the applicant must have
presented the claim of ineffectiveness to the state courts as an independent
claim); Hill v. Jones, 81 F.3d 1015, 1030 (11th Cir. 1996) (“[P]rocedurally
defaulted claims of ineffective assistance cannot serve as cause to excuse a
default of a[nother] claim.”) (emphasis in original)). Petitioner never
presented to the state courts his claim that appellate counsel was ineffective
for omitting the basis for Ground Two. Consequently, Petitioner is not eligible
for the “cause and prejudice” exception.5 Ground Two is procedurally barred
and not entitled to a review on the merits.6
2. Ground Four
Petitioner was charged with three counts of robbery with a firearm––a
count for each of the three victims. Each of the three counts was identical
except for the name of the victim. Petitioner alleges that the trial court erred
by, when charging the jury, not repeating to the jury each charge and all
lesser-included offenses for each victim for all three robbery with a firearm
counts. The postconviction court discussed Petitioner’s similar claim of
ineffective assistance of counsel (not the claim of trial court error alleged in
the federal petition) as follows:
Defendant alleges the charged offenses and lesser-included
offenses for each of the three counts were identical except that
5 Moreover, Petitioner could not possibly meet his burden of proving ineffective
assistance of appellate counsel because he had no right to counsel in the postconviction
appeal. As Sealy 954 F.3d at 1365, explains, the alleged ineffective assistance must have
“occur[red] during a stage when a petitioner had a constitutional right to counsel.”
Petitioner’s reliance on Martinez v. Ryan, 566 U.S. 1 (2012), is misplaced because, under
Davila v. Davis, 582 U.S. 521, 528–29 (2017), Martinez applies only to the postconviction
initial review stage and does not apply to a postconviction appeal.
6 Even if reviewed on the merits, Petitioner would not succeed in showing that the
state court unreasonably determined that counsel was not ineffective. The postconviction
court ruled that trial counsel “did not perform deficiently with regard to impeachment with
prior inconsistent statements [because] the information comprising the prior inconsistent
statements was ultimately presented to the jury [and, i]n his closing statement, defense
counsel highlighted each of McCurdy’s prior inconsistent statements.” (Doc. 7-2 at 1132).
Moreover, Petitioner was positively identified as one of the robbers (1) by one of the victims
(who had previously met Petitioner a few time), (2) by an eyewitness who knew Petitioner,
and (3) by another eyewitness. Consequently, identification of Petitioner as one of the
robbers did not depend wholly on McCurdy’s testimony.
each count pertained to a different victim. To avoid redundancy
and save time, the prosecutor suggested the Court read the
common instructions once and inform the jury that the
instructions are identical for each count except for the name of the
victim. Defendant alleges defense counsel did not object to this
method and the Court followed the prosecutor’s suggestion.
Defendant alleges this method is improper and erroneous.
. . . .
Each juror received a complete packet of the written jury
instructions. The trial judge charged the jury by first reading
aloud the standard introduction and statement of the charge. He
then explained the relationship between the three instructions for
robbery with a firearm found in the packet and the three counts
listed in the statement of the charge. The judge stated, “These
three counts of robbery with a firearm relate to Counts 1, 2, and 3.
So the instructions are identical, except for where the listed
victim’s name is, it has the different names of those individuals.
So I’m not going to read all three to you, but as I move along I’ll
point out the singular difference in each of the instructions where
the victim’s name is different, okay?” The judge then proceeded to
read aloud through the instructions for robbery with a firearm and
the lesser-included offenses, while pointing out the singular
difference of the victim’s name. The judge pointed out that the
lesser-included offenses were applicable to each of the three
charged counts of robbery with a firearm.
(Doc. 7-2 at 1193–94). Respondent argues that Petitioner failed to exhaust
this claim of trial court error alleged in the federal petition. In reply,
Petitioner argues that he presented his claim to the state courts and cites to
both the Rule 3.850 motion and the postconviction appellate brief. The state
court record shows that Petitioner fairly presented a claim challenging the
method used to charge the jurors by asserting the claim in both his Rule 3.850
motion (Doc. 7-2 at 1122) and his postconviction appellate brief (Doc. 7-2 at
1122). However, in state court, Petitioner presented the issue as a claim of
ineffective assistance of counsel for failing to object to the method used to
charge the jurors; in his federal petition, Petitioner alleges a claim of trial
court error, not ineffective assistance of counsel. Respondent is correct that
Petitioner did not exhaust his claim of trial court error as alleged in his
petition. As a consequence, Ground Four in this federal petition is
unexhausted and procedurally defaulted.
In his reply, Petitioner does not attempt to qualify for either the “cause
and prejudice” exception or the “fundamental miscarriage of justice” exception.
Consequently, Ground Four is procedurally barred and not entitled to a review
on the merits.7
* * * *
Having determined that Grounds Two, Three, and Four are barred
from federal review, only Ground One, which asserts a claim of ineffective
assistance of counsel, is entitled to a review on the merits.
7 In his reply, Petitioner changes his claim from one of trial court error to a claim of
ineffective assistance of counsel. Even if reviewed on the merits, Petitioner would not
succeed in showing either that the trial court erred or that the postconviction court erred in
ruling that counsel was not ineffective. The postconviction court ruled (1) that the trial
court’s method of reading the instructions “was not confusing, contradictory, or misleading”
and thus did not violate state law and (2) that “defense counsel did not perform deficiently by
failing to object to the manner in which the jury instructions were read aloud . . . .” (Doc. 7-2
at 1194–95). The state court record readily demonstrates that neither determination is
unreasonable.
C. Ground One is Denied on the Merits
Under the Antiterrorism Effective Death Penalty Act (AEDPA), federal
habeas relief may not be granted with respect to a claim adjudicated on the
merits in state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). In this context, “clearly established federal law” consists
of the governing legal principles, and not the dicta, set forth in the decisions of
the United States Supreme Court at the time the state court issued its
decision. White v. Woodall, 572 U.S. 415, 420 (2014); Carey v. Musladin, 549
U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
A decision is contrary to clearly established federal law if the state court
either: (1) applied a rule that contradicts the governing law set forth by
Supreme Court case law; or (2) reached a different result from the Supreme
Court when faced with materially indistinguishable facts. Ward v. Hall, 592
F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A decision involves an unreasonable application of clearly established law if
the state court correctly identifies the governing legal principle, but applies it
to the facts of the petitioner’s case in an objectively unreasonable manner,
Brown v. Payton, 544 U.S. 133, 134 (2005), or “if the state court either
unreasonably extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Bottoson v. Moore, 234 F.3d
526, 531 (11th Cir. 2000) (quoting Williams, 529 U.S. at 406).
The Section 2254(d) standard is both mandatory and difficult to meet.
To demonstrate entitlement to federal habeas relief, the petitioner must
show that the state court’s ruling was “so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” White, 572 U.S. at 420 (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)). Moreover, when reviewing
a claim under Section 2254(d), a federal court must presume that any
“determination of a factual issue made by a State court” is correct, and the
petitioner bears “the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e). Lastly, “[f]or purposes of
§ 2254(d)(1), ‘an unreasonable application of federal law is different from an
incorrect application of federal law.’” Richter, 562 U.S. at 101 (italics original)
(quoting Williams, 529 U.S. at 410).
A state court’s summary rejection of a claim, even without explanation,
qualifies as an adjudication on the merits, warranting deference. Ferguson v.
Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Generally, in the case of a
silent affirmance, a federal habeas court will “look through” the unreasoned
opinion and presume that the affirmance rests upon the specific reasons given
by the last court to provide a reasoned opinion. See Wilson v. Sellers, 584 U.S.
122, 125 (2018); Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991).
Strickland v. Washington 466 U.S. 668, 687–88 (1984), establishes a
two-part test for determining whether a convicted person is entitled to relief
on the ground that his counsel rendered ineffective assistance. A petitioner
must establish both that counsel’s performance was deficient and fell below an
objective standard of reasonableness and that the deficient performance
prejudiced the defense. Id. A showing on only one prong will not support an
ineffective assistance claim. Id. at 687 (“Unless a defendant makes both
showings, it cannot be said that the conviction . . . resulted from a breakdown
in the adversary process that renders the result unreliable.”).
The focus of inquiry under Strickland’s performance prong is
“reasonableness under prevailing professional norms.” Id. at 688. In
reviewing counsel’s performance, a court must adhere to the presumption that
“counsel’s conduct falls within the wide range of reasonable professional
assistance[.]” Id. at 689 (citation omitted). 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,” applying a highly deferential
level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(quoting Strickland, 466 U.S. at 690). Proving Strickland prejudice “requires
showing that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
In Ground One, Petitioner alleges that trial counsel rendered ineffective
assistance by not advising him about the possibility of an enhanced penalty as
charged in a second amended information filed on the morning of trial.
Respondent admits (Doc. 7 at 27) that the Petitioner exhausted this claim in
the postconviction proceedings. In summarily denying Petitioner’s Rule 3.850
motion, the state postconviction court acknowledged that Strickland governs a
claim of ineffective assistance of counsel. (Doc. 7-2 at 1189). Because the state
court rejected the grounds based on Strickland, Petitioner cannot meet the
“contrary to” test in Section 2254(d)(1). Petitioner instead must show that the
state court unreasonably applied Strickland or unreasonably determined the
facts. In determining “reasonableness,” the statute limits federal review to
determining only “whether the state habeas court was objectively reasonable
in its Strickland inquiry,” not to independently assess whether counsel’s
actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th
Cir. 2001). The presumption of correctness and the highly deferential
standard of review require that the analysis of this ground begin with the
state court’s analysis.
In the amended information, Petitioner was charged with three counts of
robbery with a firearm. The State had offered Petitioner a 15-year plea deal,
which Petitioner had not accepted. Before jury selection began, the State
announced that it had filed a second amended information and advised the
trial court of the two changes in the new information. The following exchange
occurred:
THE COURT: Mr. Scotese, have you received a copy of the
amended information?
MR. SCOTESE [Defense Counsel]: Not a hard copy, your Honor.
It was filed this morning.
THE COURT: Did you take a look at it?
MR. SCOTESE: I did. With the difference I saw, and if I’m wrong I
hope the State would correct me, I saw that there was a change in
the heading. It’s a second amended.
THE COURT: Mr. Jackman, what’s the change from the second
amended information?
MR. JACKMAN [Prosecutor]: There’s actually two changes, Judge.
One, we took out the principal language. But that’s going to be one
of the other things; I’m going to ask for the principal instruction.
But the second change is we put the 10-20-life language in the
statute, so now he is subject to the 10-20-life, with the language
that we substituted in with the statute.
THE COURT: You originally didn’t have that in there?
MR. JACKMAN: It was not in there originally.
THE COURT: Okay, Mr. Scotese, did you have an opportunity to
talk to your client Mr. Garcia about the 10-20-life statute, and that
if convicted as charged would be for actually carrying; is that
correct?
MR. JACKMAN: Correct, Judge.
THE COURT: So the 10-year mandatory prison this sentence.
Have you had an opportunity to discuss that with your client, Mr.
Scotese?
MR. SCOTESE: Well, your Honor, I thought that information was
already in there.
MS. WEISSMAN [Prosecutor]: Your Honor, I merely made it more
specific within the body in the text, as well as in the heading of it,
that it included 10-20-life.
THE COURT: Yeah, normally it’s included in every firearm ––
robbery with a firearm, so I’m surprised it wasn’t in there before I
guess as well. But this is a first-degree felony each count, all three
counts are punishable by life. So any objection to this, any
prejudice to the Defense on the second amended information?
MR. SCOTESE: None comes to mind, your Honor.
THE COURT: All right, and you’re waiving formal arraignment,
you’re ready to proceed to trial; is that right, Mr. Scotese?
MR. SCOTESE: Yes, your Honor.
THE COURT: Okay. So we’ll be proceeding in this case on the
information charging Mr. Garcia with three life felonies,
punishable by life, each being robbery with a firearm or a deadly
weapon. All right, Mr. Jackman, anything else?
(Doc. 7-2 at 122–24).
When raised in Petitioner’s Rule 3.850 Motion, the postconviction court
rejected this claim as follows:
Defendant alleges defense counsel was ineffective for failing to
explain to him the implications of language added in the State’s
second amended information relating to the 10-20-Life sentencing
enhancement. In support, Defendant alleges that shortly before
jury selection began, the State filed its second amended
information. Defendant alleges counsel waived formal
arraignment without discussing it with Defendant. Had he known
about the possibility of a minimum mandatory prison term and the
possibility of a life sentence, Defendant alleges he would have
accepted the State’s plea offer of 15 years rather than proceed to
trial. Defendant further alleges the State would not have
withdrawn the offer; the Court would have accepted the change of
plea; and the plea offer would have resulted in a lesser sentence
than the 20-year sentence ordered in this case.
The State responds the record refutes Defendant’s claim in that
the implications of the 10-20-Life language in the charging
information was discussed in open court, with the Defendant
present.
The record shows Defendant was present in court when the
prosecutor announced the filing of the State’s second amended
information. The Court announced the second amended
information charged Defendant with three counts of robbery with
a firearm or deadly weapon, each count punishable by life with a
10-year mandatory prison sentence. Thus, Defendant was aware of
the possibility of a minimum mandatory prison term and the
possibility of a life sentence, yet did not seek to accept the State’s
prior plea offer as he alleges that he would have done. Defendant’s
claim fails to satisfy the prejudice prong of Strickland. Ground 4
is denied.
(Doc. 7-2 at 1188–89) (internal footnotes omitted).
Petitioner has not shown that the state postconviction court
unreasonably denied his claim. The prosecutor explained that the purpose
of the amendment was to “merely ma[k]e [the 10-20-life provision] more
specific;” defense counsel (1) advised the trial court that he thought the
minimum mandatory provision “was already in there,” which implies that
defense counsel had already discussed the provision with Petitioner, and
(2) represented that the amendment did not prejudice the defense. The
postconviction court denied this claim for lack of prejudice, finding that
Petitioner had the opportunity to object to the amendment but proceeded to
trial knowing he faced a minimum mandatory sentence of ten years. The
impact of the minimum mandatory provision is diminished by Petitioner’s
retrospective willingness to accept a sentence of 15 years’ imprisonment.8
In this federal action, Petitioner focuses more on the deficient
performance prong of Strickland and not the prejudice prong. But as
explained above, Strickland requires proof of both prongs. The postconviction
court ruled that Petitioner did not meet the prejudice prong. Although
Petitioner certainly disagrees with the state postconviction court’s ruling,
under Section 2254(d), this federal court must defer to the state court’s ruling
unless that ruling was “unreasonable.” And as explained above, “an
unreasonable application of federal law is different from an incorrect
application of federal law.’” Richter, 562 U.S. at 101 (italics original) (quoting
Williams, 529 U.S. at 410). The Court finds no such unreasonable application
here.
8 Petitioner always faced the possibility of a sentence of life imprisonment.
Petitioner has a high hurdle to overcome to warrant federal habeas relief
based on a claim 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; see also
Dunn v. Reeves, 594 U.S. 731, 739 (2021) (“This analysis is ‘doubly deferential’
when, as here, a state court has decided that counsel performed adequately.”);
Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (An applicant must overcome
this “‘doubly deferential’ standard of Strickland and the AEDPA.”); Nance v.
Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (“Given the
double deference due, it is a ‘rare case in which an ineffective assistance of
counsel claim that was denied on the merits in state court is found to merit
relief in a federal habeas proceeding.’”) (quoting Johnson v. Sec’y, Dep’t of
Corr., 643 F.3d 907, 911 (11th Cir. 2011)); Pooler v. Sec’y, Dep’t of Corr.,
702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s
ineffective counsel claim — which is governed by the deferential Strickland
test — through the lens of AEDPA deference, the resulting standard of review
is ‘doubly deferential.’”).
“And in reviewing the work of their peers, federal judges must begin
with the ‘presumption that state courts know and follow the law.’ Or, in more
concrete terms, a federal court may grant relief only if every ‘fairminded
juris[t]’ would agree that every reasonable lawyer would have made a different
decision.” Reeves, 594 U.S. at 739–40 (quoting Woodford v. Visciotti, 537 U.S.
19, 24 (2002), and Richter, 562 U.S. at 101) (italics and brackets original). This
federal court cannot say that the state court’s rejection of Petitioner’s Ground
One was an unreasonable application of Strickland or was based on an
unreasonable determination of facts.
II. CONCLUSION
Based on the foregoing, Petitioner is not entitled to habeas relief.
Accordingly, it is ORDERED that:
1. The 28 U.S.C. § 2254 petition (Doc. 1) filed by Julio Malachi Garcia is
DENIED.
2. The Clerk is DIRECTED to enter judgment in favor of Respondent
and against Petitioner, terminate any pending motions, and close this case.
Certificate of Appealability9
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).
Rather, a district court or circuit justice or judge must first issue a certificate
of appealability (COA). “A [COA] may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C.
9 Under Rule 11(a), Rules Governing Section 2254 Cases in the United States District
Courts, the “district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.”
§ 2253(c)(2). To make this substantial showing, a petitioner “must
demonstrate [either] that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,” Slack v.
McDaniel, 529 U.S. 478, 484 (2000), or that “the issues presented [are]
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003).
Upon consideration of the record, the Court declines to issue a COA.
Because Petitioner is not entitled to a COA, he is not entitled to appeal in
forma pauperis.
DONE and ORDERED in Tampa, Florida, on March 16, 2026.
JOHN L. BADALAMENTI
UNITED STATES DISTRICT JUDGE
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